The Review of Efficiency in Criminal Proceedings was published on the end of January 2015 and on 11 March the Lord Chancellor welcomed and accepted all of the recommendations “in principle”.
The Review raises a broad range of proposals of varying scale and ambition, from an open-minded review of Magistrates’ Court opening hours, to increasing the number of oral or stand down reports by probation officers to reduce the number of adjournments for sentence, to recommendations for substantial investment in IT which would transform the way the Crown Courts in particular go about their business. Observations are made about how best to deal with ABE (achieving best evidence) interviews, the management of oppressive or unnecessary cross-examination particularly of vulnerable witnesses, the efficient use of expert evidence, and the increasing use of digitally gathered evidence eg from BWVs (body worn videos).
Justification for further cuts?
Sir Brian states in his opening paragraph that the Review’s “purpose is to demonstrate ways, consistent with the interests of justice, it might be possible to streamline the disposal of criminal cases thereby reducing the cost of criminal proceedings for all public bodies. A further aim is to ensure that proposed reductions in criminal legal aid can be justified on the basis that the rate of remuneration will not be affected: less work will be required to be put into each case because considerable waste and inefficiency in the system (which takes up the time of criminal lawyers and thus costs money) has been eliminated.”
Whilst Sir Brian makes many recommendations which have been extremely well-received, particularly in relation to technological innovation and the positive cultural changes that this would enable, the second of the sentences set out above has caused significant consternation within the profession. The importance of maintaining appropriate remuneration is underscored in the Review itself at paragraph 22 – “otherwise the highest calibre individuals will not be prepared to work in the field and standards will inevitably drop”. These observations repeat the strong message delivered to Government by Sir Brian Leveson himself at the end of the Court of Appeal’s Judgment in R v Crawley & others  EWCA Crim 1028.
Criminal legal aid fees have taken a battering over the past ten years or so, falling by as much as 40% in real terms. Nowhere within the agreed terms of reference, which are set out in full in the second introductory paragraph, is there a hint that any part of the purpose of the serious exercise Sir Brian has undertaken was to provide justification for further reductions in criminal legal aid fees. It will be most regrettable if at some stage in the future, perhaps post the successful implementation of the key recommendations, they are used as any sort of pretext for further cuts to the criminal legal aid budget. The criminal Bar and indeed the Bar Council have supported this initiative on the basis that improving efficiency within the Criminal Justice System (CJS) will reduce Ministry of Justice spending and thereby obviate the need for further cuts to fees.
This gripe about further cuts to criminal fees perhaps should be parked for the time being – the criminal Bar’s resolve on this issue has been clearly demonstrated; instead, this article will focus on the positive and compelling case Sir Brian sets out for significant cultural and procedural change within the CJS to improve efficiency and performance.
Charging decisions and the Magistrates’ Court
The Review emphasises the importance of a range of key milestones in the life of a criminal case, and the behaviours required of the lawyers, judges and the courts to ensure the efficient progress and ultimate disposal of every criminal case. It perhaps shouldn’t need restating but Sir Brian lays considerable emphasis on the importance of appropriate charging decisions “based on fair appraisal of sufficient evidence, with proportionate disclosure of material to the defence”.
A strong and consistent theme throughout the Review is that the Magistrates’ Court should retain a greater volume of the cases. Sir Brian suggests that progress in this direction could be achieved if a more robust approach was taken to the assessment of “likely” sentence, to weigh more heavily factors like the possibility of a guilty plea, and personal mitigation. This line of argument presumably reflects a degree of frustration that the Crown Courts not infrequently pass sentences which fall within the powers of the Magistrates’ Court, thereby incurring unnecessary cost and causing avoidable delay. The Review also speaks of apparent regional differences in allocation decisions. The debate about promoting rigid national standards and allowing a fair amount local discretion and autonomy will no doubt continue.
Out of scope
Sir Brian emphasises that his remit is limited to changes which do not require primary legislation. However in Chapter 10 “Further Observations: Out of Scope”, he cannot resist addressing fundamental reform more expansively, but also much more controversially. He argues cogently that there are too many routes of onward appeal from conviction and sentence in the Magistrates’ Court: as of right for a full rehearing to the Crown Court, directly to the High Court, Queen’s Bench Division, on points of law by way of case stated, or by an application for judicial review on a number of grounds. This procedural variety and complexity is contrasted with the more linear and limited avenue of appeal from the Crown Court. There may be a strong argument for a degree of rationalisation in relation to appeals from the Magistrates’ Court, but this has not become a burning issue, perhaps because these rights of appeal are invoked relatively rarely and appeals with no merit are despatched with little mercy by the High Court. By contrast the right of appeal against a refusal of bail by the Magistrates to the High Court was abolished some years ago because of its all too frequent exercise (s 17(2) CJA 2003).
The more hoary issue of restricting jury trial rears its head too in this section of the Review. Sir Brian rehearses the familiar arguments of the burden placed on jurors, and the financial cost to the public purse of jury trial, often vastly outweighing the sums in issue. He also queries how authentic is the putative historical embrace that envelopes our attachment to jury trial. He quotes with obvious approbation the views of one contributor to the Review that a judge should have the final say on venue in either way cases – “Who better to perform such a task than an independent judiciary.” This issue is, as Sir Brian acknowledges, firmly “out of scope”, but he falls a long way short of persuading me that this precious right of citizenship should be curtailed any further. On a related matter canvassed in this section it is telling that the Review reports that the judges at Southwark “who try the vast bulk of the most serious fraud” (para 357, p 91) are unpersuaded about the desirability of judge alone trials for the most serious and complex cases.
A new culture: case ownership and the role of it
The proposals of greatest value from a practitioner’s point of view would if implemented have the effect of liberating us from the curse of warned lists, “backer trials”, and pointless PTRs (pre-trial reviews) listed on quixotic or tetchy judicial whim, rather than on the basis of genuine legal or procedural need. “Nine o’clock at Aylesbury”, or “fourteenth on at 10.00am at Wood Green” would be consigned to the dustbin of historic legal curios. All case materials would be accessible electronically via a new “CJS Common Platform”. Cases would be “owned” by the trial advocates at an early stage. Fixed date trials would be the invariable norm; listed not to satisfy the statistical performance indicators of a particular Court Centre but with the continuity of advocate in mind, upon which the new culture would essentially depend. Pre-trial hearings, to thrash out timeously issues in advance of trial, and to manage the risk of an ineffective trial, would be conducted remotely and/or electronically – “We need to reduce the number of hearings at which the participants need to attend” (Chapter 1, para 15, p 4). The necessary work would continue to be undertaken as now, but the hearings unpopular with advocates, for reasons of dead travel time, the impossibility of attendance and the absence of any remuneration, and with Her Majesty’s Courts and Tribunals Service, for reasons of court time, would be eliminated.
The experience of many is that the endless micro-management, and listing without consultation or much notice, announced with the unrealistic cry of “trial advocates must attend”, bedevil particular courts and are the twitchings of particular judges or court centres, rather than being universally required. Most modern, effective judges communicate by e-mail already, focus on the key issues and don’t obsess about interview edits, jury bundles and the like, long in advance of a trial. If experienced advocates cannot be trusted to do the basics, and come to realistic agreement with colleagues without constant judicial oversight then Sir Brian’s reforms will be in vain. Trials, these days, are very rarely adjourned at the request of the defence, or as a result of failures of the prosecuting advocate; absurd listing, witness problems, Crown Prosecution Service inefficiency, and prisoner “no shows” cause most of the problems.
Sir Brian’s description of how the future might one day look may sound like legal Nirvana to harassed criminal practitioners but much of this approach to working is already embedded in the commercial courts. There is overwhelming good sense to the ambition. However, Sir Brian understands and identifies the need for substantial investment in the technological infrastructure – the “Common Platform” – to support the more efficient working he envisions. All case materials would be accessible electronically, pleadings, skeletons etc would be posted electronically, applications and rulings could be made remotely. The immediacy, transparency and of course personal accountability of such a system would save huge amounts of court and professional time, and allow cases to proceed in the most efficient manner.
The financial implications
This will require substantial government investment in the short-term, as the Review emphasises, for example in secure on-line conferencing connections to prisons, additionally to the infrastructure to make the CJS Common Platform a reality. Sir Brian is a strong advocate of the Early Guilty Plea initiatives but is wise to underscore the part the Legal Aid Agency must play in adjusting fee payment structures in sympathy with early disposal. The balance between creating financial incentives and properly rewarding the most efficient practitioners must be addressed. At present advocates pay a significant price for providing proper early advice to plead guilty; this needs urgently to be rectified.
The time has surely come to modernise our criminal courts; improving witness experience, and supporting diligent professionals, rather than wasting their time. The Leveson Review provides a template for the future. Some modification will no doubt be required. Practitioners will have fewer places to hide but the benefits will be considerable.