Getting it right first time

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The Criminal Bar has just received a Better Case Management Information Pack. Peter Hungerford-Welch explains the background to its arrival, the new case management system and what this means for counsel

In January 2015, the Review of Efficiency in Criminal Proceedings by Sir Brian Leveson was published. 


The Review made a number of recommendations based on some “overarching principles”.

  • Getting it right first time: the police and Crown Prosecution Service (CPS) working to achieve “appropriate charging decisions, based on fair appraisal of sufficient evidence, with proportionate disclosure of material to the defence” (para 25);
  • Case ownership: “for each case, in the police, the CPS and for the defence, to maximise the opportunities for case management, there must be one person who is (and is identified to be) responsible for the conduct of the case” (para 26);
  • A duty of direct engagement between identified representatives who have case ownership responsibilities (para 33): it should be made clear that “the parties are under a duty to engage at the first available opportunity” (para 34), and “there is an obligation on any party to justify the need for an interlocutory hearing to take the form of a formal court hearing with all parties present” (para 37);
  • Effective and consistent judicial case management: “the court must be prepared robustly to manage its work”, and “all parties must be required to comply with the Criminal Procedure Rules and to work to identify the issues so as to ensure that court time is deployed to maximum effectiveness and efficiency” (para 38).

To enable reforms to be brought into effect quickly, the terms of reference for the Review were confined to changes that could be brought about through the Criminal Procedure Rules and the Criminal Practice Directions (and so without the need for primary legislation). Nonetheless, the Review did make some recommendations for statutory changes (see chapter 10).

Implementing Leveson

The Better Case Management (BCM) project seeks to implement some of the recommendations in the Review. As Gross LJ, Senior Presiding Judge for England and Wales, observes in paragraph 3 of the Better Case Management Information Pack, its overarching aims are:

  • Robust case management;
  • Reduced number of hearings;
  • Maximum participation and engagement from every participant within the system;
  • Efficient compliance with the Criminal Procedure Rules, Practice and Court Directions.

BCM is underpinned by an amendment to Part 3 of the Criminal Procedure Rules and to Part 3A of Criminal Practice Direction I. When the amendments to the Criminal Practice Direction were published (on 16 July 2015), the Lord Chief Justice explained that BCM, of which the changes form part, is “a national scheme designed to elicit early guilty pleas and to reduce the number of hearings per case”.

The duty of the parties to engage with each other and with the court is now enshrined in Part 3 of the Criminal Procedure Rules 2015 (in force from 5 October 2015). Rule 3.3(1) provides that each party must “actively assist” the court in fulfilling its duty under rule 3.2 (the duty to further the overriding objective by actively managing the case), and rule 3.3(2) says that active assistance for these purposes includes:

a. at the beginning of the case, communication between the prosecutor and the defendant at the first available opportunity and in any event no later than the beginning of the day of the first hearing;
b. after that, communication between the parties and with the court officer until the conclusion of the case;
c. by such communication establishing, among other things –

i. whether the defendant is likely to plead guilty or not guilty,

ii. what is agreed and what is likely to be disputed,

iii. what information, or other material, is required by one party of another, and why, and

iv. what is to be done, by whom, and when (without or if necessary with a direction); and

d. reporting on that communication to the court –

i. at the first hearing, and

ii. after that, as directed by the court.

Initial details of Prosecution Case

Rule 8 of the Criminal Procedure Rules 2015 extends the scope of the prosecution’s duty to supply “initial details” of the prosecution case so that it applies in all cases, not just cases that may be tried in the magistrates’ court. Moreover, what has to be disclosed (if the accused so requests) no later than the date of the first hearing has been redefined. Under rule 8.3, initial details of the prosecution case must now include:

a. where, immediately before the first hearing in the magistrates’ court, the defendant was in police custody for the offence charged –

i. a summary of the circumstances of the offence, and

ii. the defendant’s criminal record, if any;

b. where paragraph (a) does not apply –

i. a summary of the circumstances of the offence;

ii. any account given by the defendant in interview, whether contained in that summary or in another document;

iii. any written witness statement or exhibit that the prosecutor then has available and considers material to plea, or to the allocation of the case for trial, or to sentence;

iv. the defendant’s criminal record, if any; and

v. any available statement of the effect of the offence on a victim, a victim’s family or others.

The amended Practice Direction makes it clear (in para 3A.4) that the initial details that are supplied must include sufficient information to allow the defendant and the court at the first hearing to take an informed view: on plea; on venue for trial (if applicable); for the purposes of case management; or for the purposes of sentencing (including committal for sentence, if applicable). Paragraph 3A.12 adds that where the accused has been released on bail after being charged, and where the prosecutor does not anticipate a guilty plea at the first hearing in a magistrates’ court, then it is essential that the initial details of the prosecution case that are provided for that first hearing “are sufficient to assist the court, in order to identify the real issues and to give appropriate directions for an effective trial (regardless of whether the trial is to be in the magistrates’ court or the Crown Court)”.

Plea and Trial Preparation Hearing

Under rule 3.13(1)(b) of the Criminal Procedure Rules 2015, the Crown Court must conduct a Plea and Trial Preparation Hearing (PTPH). The PTPH replaces the familiar Plea and Case Management Hearing (PCMH). There is also a PTPH form, use of which is mandatory (see para 3A.3 of the Practice Direction).

To ensure timeliness, para 3A.11 of the Practice Direction requires that, where a case is sent for trial (on the basis that the accused will be pleading not guilty), a PTPH must be held within 28 days of sending. An indictment should be lodged at least 7 days in advance of the PTPH (para 3A.16) – in other words, before the expiry of the 28 days from service on the defendant and the Court of copies of the documents containing the evidence on which the charge(s) are based, that is permitted for service of the indictment under rule 10.1(1)(a). Additional case management hearings are discouraged (para 3A.21). Any case progression hearings should take place without the use of courtrooms, using electronic communications.

To achieve the same result that the system of “Early Guilty Plea Hearings” was intended to put in place, para 3A.17 of the Practice Direction provides that:

In a case in which the defendant, not having done so before, indicates an intention to plead guilty to his representative after being sent for trial but before the Plea and Trial Preparation Hearing, the defence representative will notify the Crown Court and the prosecution forthwith. The court will ensure there is sufficient time at the PTPH for sentence and the Judge should at once request the preparation of a pre-sentence report if it appears to the court that either:

a. there is a realistic alternative to a custodial sentence; or

b. the defendant may satisfy the criteria for classification as a dangerous offender; or

c. there is some other appropriate reason for doing so.

Paragraph 13 of the Better Case Management Information Pack amplifies the procedure thus:

If a guilty plea is entered at the PTPH then the matter should proceed to sentence whenever possible, with a stand down Pre-Sentence Report (PSR) if appropriate. If a not guilty plea is entered at the PTPH case management should then take place in preparation for trial. This should be done using the PTPH form which will have been completed by the parties and served on the court in advance of the hearing.

Moving towards paperless criminal courts

One of the themes of Sir Brian Leveson’s Review (see chapter 3) was the role of IT. To this end, a Digital Case System (DCS), a web-based digital Crown Court file which will be accessible in court by the judiciary, defence and prosecution, will be rolled out.

The need to “road test” the new processes means that some courts will be ‘early adopters’ of BCM. The Better Case Management Newsletter, Issue 1, says that between 5 October and 9 November 2015, the “early adopter” courts (Isleworth, Leeds, Leicester, Liverpool, Merthyr, Portsmouth, Reading and Woolwich) will start operating BCM for new cases. These early adopters “will be able to refine the detail of the scheme, test out the new Plea and Trial Preparation Hearing (PTPH) form, and ensure compatibility with the Crown Court Digital Case System (formerly CaseLines)”; for cases sent prior to 5 October, courts will continue with their current listing patterns of Preliminary Hearing and PCMHs, using the existing Plea and Case Management Hearing form, but will be expected to apply BCM principles (such as case ownership and engagement to identify pleas and issues). On 5 January 2016, all courts will start operating BCM.

Allocation

It is also worth noting that Sir Brian Leveson’s Review makes a recommendation (at para 78) about allocation:

Magistrates’ Courts must be encouraged to be far more robust in their application of the allocation guideline which mandates that either way offences should be tried summarily unless it is likely that the court’s sentencing powers will be insufficient. The word ‘likely’ does not mean ‘possible’ and permits the court to take account of potential mitigation and guilty plea, so can encompass cases where the discount for a guilty plea is the feature that brings the case into the Magistrates’ jurisdiction. It is important to underline that, provided the option to commit for sentence is publicly identified, the decision to retain jurisdiction does not fetter discretion to commit for sentence even after requesting a pre-sentence report.

The point is emphasised (at para 81):

[I]n cases where Magistrates are uncertain about the adequacy of their powers (short of it being likely that they are not), they can retain the case and commit for sentence if they later take the view that the case falls outside their sentencing powers. This possibility needs to be made clear to the accused.

A revised Allocation Guideline is due to be issued by the Sentencing Council to give effect to this recommendation.

Contributor Professor Peter Hungerford-Welch

Key changes:

  1. Initial details of prosecution case to be supplied upon request in all cases and new requirements as to what must be disclosed (Part 8)
  2. Specific duty of communication between the parties (Part 3)
  3. The PCMH becomes the PTPH (Plea and Trial Preparation Hearing)
  4. A new PTPH form must be completed before the PTPH

Websites:

Review of Efficiency in Criminal Proceedings 

Better Case Management Information Pack 

Better Case Management Newsletter, Issue 1

Amendment No. 4 to the Criminal Practice Directions – Summary of Key Changes

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Peter Hungerford-Welch

Peter is Assistant Dean at the City Law School, teaching on the BPTC and the LLM programme. He writes in Blackstone’s Criminal Practice (OUP) and theCriminal Law Review, and is author of Criminal Litigation and Sentencing (Routledge, 8th edition).

Peter Hungerford-Welch

Peter Hungerford-Welch, Assistant Dean, City Law School