Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘criminal procedure

Making it Fair: The Disclosure of Unused Material in Volume Crown Court Cases

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In July 2017,  HM Crown Prosecution Service Inspectorate and HM Inspectorate for Constabulary published a joint report on the disclosure of unused evidence. Based on the analysis of a number of sets of court papers, the report reveals very poor compliance with the relevant rules.

The report states: “Disclosure is one of the cornerstones of the criminal justice system and disclosure of unused material is a key component of the investigative and prosecution process. …Every unused item that is retained by police and considered relevant to an investigation should be reviewed to see whether it is capable of undermining the prosecution case or assisting the defence case. If either factor applies it must be disclosed to the defence.’

This inspection by HMCPSI and HMIC identified a number of issues which are contributing to widespread failures across the board by both police and prosecutors.

  • Police scheduling (the process of recording details of sensitive and non-sensitive material) is poor and this, in turn, is not being challenged by prosecutors.
  • Police are routinely failing to comply with guidance and requirements when completing and recording data, such as the non-sensitive disclosure schedule (known as MG6C).
  • The College of Policing is supposed to provide training on disclosure. [But] Many officers admitted they lacked confidence in their role and responsibilities as disclosure officer.
  • Prosecutors are expected to reject substandard schedules and there was little evidence of such challenge occurring, with a culture of acceptance prevailing.
  • There was also poor decision-making by prosecutors on the Criminal Procedure and Investigations Act (CPIA) test for disclosure. In 54% of cases prosecutors simply endorsed schedules without recording their reasoning.
  • There were further failings in maintaining a complete audit trail of actions and decisions setting out the prosecution disclosure process.
  • There was poor supervision of standards, although where police forces have introduced quality control mechanisms this was found to improve the quality of data.
  • The exchange of information and documents between the police and CPS is often hindered rather than helped by technology, with a number of police systems presenting problems.

The report set out a strict timetable for change.

Immediately:

all disclosure issues relating to unused material to be identified at the charging stage.

Within six months:

the CPS to comply with the Attorney General’s Guidelines on Disclosure, with an allocated prosecutor reviewing every defence statement and giving prompt guidance to police;

police forces to improve supervision of unused material;

CPS Compliance and Assurance Team to begin dip sampling;

all police forces to establish role of dedicated disclosure champion of senior rank;

a system of sharing information between CPS Areas and Headquarters to monitor performance;

CPS and police to develop effective communications processes.

Within 12 months:

the College of Policing to introduce a disclosure training package;

the CPS and police to review digital case management systems.

The full report is available at http://www.justiceinspectorates.gov.uk/cjji/inspections/making-it-fair-the-disclosure-of-unused-material-in-volume-crown-court-cases/

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Written by lwtmp

November 6, 2017 at 3:00 pm

Transforming the English Legal System: Criminal Justice

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The Consultation Paper, Transforming our Legal System, states, in relation to the Criminal Justice system that, first, the criminal courts should be more flexible. This will be achieved by:
i. Aligning the criminal courts: Magistrates’ courts and the Crown Court deal with
different levels of criminal offence, but they must work better together to provide a
more efficient service. We are working with the judiciary on structural and
procedural changes that will give the senior judiciary clearer oversight of, and
flexibility to manage, judicial leadership in the criminal jurisdiction. This will enable
the Crown Court and magistrates’ courts to operate more closely together –
stronger leadership and alignment will improve court performance for everyone
involved. To support this, we will bring the structures of the courts closer by
reforming existing local justice areas and making it easier to transfer cases between
the Crown Court and Magistrates’ Court when appropriate – starting in the right
place will make the process simpler and easier for victims and defendants.
ii. Making it easier for vulnerable and intimidated witnesses (including victims) to give
evidence: We will roll out the use of pre-trial cross-examination in Crown Court
trials, allowing vulnerable and intimidated witnesses to pre-record their cross-
examination, meaning the witness does not always need to attend the trial itself. A
pilot found that this procedure meant witnesses gave evidence in half the time it
would take at trial. We believe that expanding this will reduce distress for victims
and witnesses and improve their overall experience of the justice system.
Second, the Government wants courts to do more to address offender behaviour. It is proposed that this should be done by:
i.Introducing problem solving courts: We are exploring the opportunities for problem
solving methods further with the judiciary and collecting the evidence base. We are
continuing to trial this approach in locations across the UK.
ii. Using out of court disposals: We will use out of court disposals in appropriate cases,
to help change offenders’ behaviour at the earliest possible opportunity– with swift
and certain consequences for offenders who do not comply with the conditions
attached.
Thirdly, the Government is seeking to improve process and technology for more efficient and digital justice. It plans to do this by
i. Streamlining process: We are making changes to the way cases progress through
the criminal courts, including removing unnecessary appearances in court (such as
first appearances in magistrates’ courts for cases which can only be tried in the
Crown Court), introducing a more efficient process to allocate cases to the Crown
Court or magistrates’ courts and allowing simple decisions to be made via a new
online system.

ii. Using technology to make processes more efficient: We will increase the use

of video link and telephone and video conferencing technology to make
hearings easier and more convenient for all, including victims and witnesses
and criminal justice system agencies. We will work with the police to hold bail
hearings by video link from police stations to reduce the need for some
offenders to be held in police cells overnight. In appropriate cases offenders
will be able to plead guilty, be convicted and sentenced all on the same day by
live video link from police stations.
iii. Introducing a new collaborative IT system: The Common Platform is already
being developed to provide a single case management IT system for use
throughout the Crown Court and magistrates’ courts. It will provide access to
case material and information to many agencies within the criminal justice
system as well as the defence, victims and witnesses. Many current paper and
court-based processes will be moved online, saving time and increasing
efficiency for all court users.
iv. Enabling online convictions and fixed fines: For certain routine, low-level
summary, non-imprisonable offences with no identifiable victim, we propose to
introduce a system which resolves cases entirely online. Defendants would log
on to an online system to see the evidence against them before entering a
plea. If they plead guilty, they can opt in to (and can always opt out of) the
online system which allows them to view the penalty, accept the conviction
and penalty, and pay their fine. Cases would be resolved immediately and
entirely online, without the involvement of a magistrate.

Many of these proposals build on initiatives already started. However, the suggestion for more problem solving courts is potentially quite innovative and could lead to significant change to the ways in which the criminal courts have historically operated.

See chapter 2: https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals/supporting_documents/consultationpaper.pdf

 

Written by lwtmp

October 5, 2016 at 9:54 am

More criminal trials to be heard in the magistrates’ court

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Early in 2016, there was an announcement that more criminal cases would be dealt with in the magistrates’ courts, rather than being sent to the Crown Court.

The source for this announcement was not a new piece of legislation, redrawing the boundaries between cases heard in these two courts. Rather, it was the announcement that, from 1 March 2016, the Sentencing Council was issuing ‘definitive guidance’ on how cases triable either way – i.e. summarily (in the Magistrates’ Court) or on indictment (in the Crown Court) were to be allocated.

One of the key recommendations of the Leveson Review of Efficiency in Criminal Proceedings was

“Magistrates’ Courts must be encouraged to be far more robust in their application of the allocation guideline which mandates [emphasis added] that either way offences should be tried summarily unless it is likely that the court’ssentencing 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 Sentencing Council consulted on a change to their guidance on allocation and have provided new guidance which comes into effect on 1 March 2016.
The guidance states:
1. In general, either way offences should be tried summarily unless:
• the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or
• for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court. This exception may apply in cases where a very substantial fine is the likely sentence.
Other circumstances where this exception will apply are likely to be rare and case specific; the court will rely on the submissions of the parties to identify relevant cases.
2. In cases with no factual or legal complications the court should bear in mind its power to commit for sentence after a trial and may retain jurisdiction notwithstanding that the likely sentence might exceed its powers.
3. Cases may be tried summarily even where the defendant is subject to a Crown Court Suspended Sentence Order or Community Order.
4. All parties should be asked by the court to make representations as to whether the case is suitable for summary trial. The court should refer to definitive guidelines (if any) to assess the likely sentence for the offence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case including those advanced by the defence, including any personal mitigation to which the defence wish to refer.
Where the court decides that the case is suitable to be dealt with in the magistrates’ court, it must warn the defendant that all sentencing options remain open and, if the defendant consents to summary trial and is convicted by the court or pleads guilty, the defendant may be committed to the Crown Court for sentence.
It is estimated that a significant number of cases will in future be retained in magistrates’ courts as a result of this guidance.
The Sentencing Council makes bold claims for the new guideline, stating:
The guideline aims to bring about a change in culture and will inevitably provide some challenges, but the Council is confident from the responses to the consultation that the guideline will be welcomed by sentencers and will play a role in ensuring that justice is delivered fairly, swiftly and efficiently in more cases.
The press notice is at http://www.sentencingcouncil.org.uk/news/item/sentencing-council-issues-definitive-allocation-guideline/
The link to the guideline is at http://www.sentencingcouncil.org.uk/publications/item/allocation-guideline-revised/

Written by lwtmp

January 21, 2016 at 6:40 pm

The Criminal Justice and Courts Act 2015

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The Criminal Justice and Courts Act 2015 was passed in February 2015. It is a complex piece of legislation which deals with four broad topics:

  • Part 1 Criminal Justice,
  • Part 2 Youth Offenders,
  • Part 3 Courts and tribunals, and
  • Part 4 Judicial Review.

What follows is by no means a full analysis of the Act. It is a selective review of those matters that seem most relevant to the development of the English Legal System

Part 1 makes a number of detailed amendments to the law relating to those found guilty of very serious offences, such as terrorism offences. In some cases the maximum sentence is increased from 30 years to life imprisonment. In addition, the Parole Board is given new responsibilities to assess the risk of certain serious offenders, such as those convicted of serious terrorism or serious sexual and violent offences before they are released into the community. No longer will such offenders be entitled to automatic release halfway through a sentence.

Once released from prison on licence, there are increased powers to monitor such persons through the use of electronic tracking devices.

If an offender who has been released on licence is recalled, the decision about what should happen to him will in future be taken by a ‘recall adjudicator’ rather than being automatically being referred to the Parole Board for consideration. Since the Parole Board can itself be appointed a ‘recall adjudicator’ it will still be involved in some decisions, but in other cases the decision can be made by a single adjudicator rather than a panel drawn from the Board.

Sections 17-19 set out the restrictions on the use of cautions by the police which have long been promised by the Government. In essence, the more serious the alleged offence, the more restrictions on the use of cautions.

There are a number of offences created relating to wilful neglect by care workers.

In cases involving the murder of police or prison officers, where the sentence is life, the Act provides that the starting point for consideration of the minimum period of detention should be the whole life, rather than, as at present 30 years.

Part 2 deals with Youth Offenders. Currently, young offenders may be detained in young offender institutions, remand centres and secure training centres. The Act provides that in addition there can be established secure colleges – designed to place greater emphasis on the education of young offenders. The Act also provides for the contracting out of the provision of services relating to young offenders.

Among other detailed amendments, Section 41 amends the Crime and Disorder Act 1998 so that any youth caution or youth conditional caution given to a young person aged 17 must be given in the presence of an appropriate adult. That is already a requirement where a youth caution or youth conditional caution is given to a child or young person aged under 17.

Part 3 on Courts and tribunals among other things introduces a new single justice procedure whereby proceedings against adults charged with summary-only non-imprisonable offences can be considered by a single magistrate, on the papers. This will be without the attendance of either prosecutor or defendant. The defendant will be able to engage with the court in writing instead of attending a hearing; as neither prosecutors nor defence will be attending, the case will not need to be heard in a traditional courtroom.

The purpose of this new procedure is to deal more proportionately with straightforward, uncontested cases, involving offences such as failure to register a new vehicle keeper, driving without insurance, exceeding a 30mph speed limit, and TV licence evasion. In many of these cases the defendant is not present in court, either because they have chosen not to engage with the process or because the defendant has sent a written guilty plea. In such cases, the hearing takes place in an empty courtroom with only magistrates, prosecutors and court staff present. This procedure offers an alternative form of proceedings to help ensure that these cases are brought before the court at the earliest opportunity and dealt with more efficiently.

The Act introduces a new principle that those convicted of crimes should be required to make a contribution towards the costs of the criminal court. The details will appear in regulations in due course.

Part 3 also extends the potential use of ‘leap-frogging’ – enabling cases that are clearly going to go to the Supreme Court to get there directly, without the need for a hearing in the Court of Appeal.

Part 3 also raises the age limit for jurors to 75. It also creates new offences that may be committed by jurors – e.g. using social media during a trial.

Part 4 – on changes to Judicial review – will be the subject of a separate blog entry.

The Act and accompanying explanatory notes can be found at http://www.legislation.gov.uk/ukpga/2015/2/contents

Written by lwtmp

May 29, 2015 at 4:36 pm

Disclosure of unused evidence in a criminal trial

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Part 2 of the Criminal Procedure and Investigations Act 1996 makes provision for the publication of a Code of Practice which sets out how police officers are to record, retain and reveal to the prosecutor material obtained in a criminal investigation. A previous version of the code was published in 2005.

In May 2014 the Magistrates’ Court Disclosure Review recommended a streamlined procedure in summary cases that are expected to end in a guilty plea, so that a schedule of unused material need not be served in such cases. To this end it recommended amendments to the code, some of which are incorporated in the revised code.

The revised code was laid in Parliament on 28 January 2015. The Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2015 will bring it into force the day after the Order has been approved by affirmative resolution of both Houses of Parliament.

The Code, in its present unappoved form is available at https://www.gov.uk/government/publications/criminal-procedure-and-investigations-act-code-of-practice

Written by lwtmp

March 3, 2015 at 4:39 pm

Pre-recorded evidence trial

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An issue which has received a lot of public attention in recent months is the way in which some witnesses in criminal trials are required to give their evidence. In a pilot experiment in three courts, including Kingston Crown Court, the most vulnerable victims and witnesses are able to give their evidence and be cross-examined away from the intense atmosphere of a live courtroom, in an attempt to spare them from what could be aggressive questioning in front of jury, judge and their alleged attacker.

People who may find it difficult to give their best possible evidence in a courtroom environment and all child victims will be considered for pre-trial cross-examination. This allows them to give their evidence and be cross-examined by both prosecution and defence barristers ahead of the trial, in front of a judge. The video recording is then shown to the jury as part of the trial. Previously victims could have been subject to lengthy, stressful questioning by multiple barristers in view of jurors and the public gallery.

This initiative follows the recent review of the Victims’ Charter.

If the pilot works, the new procedure will be rolled out across the country. This will be particularly relevant to cases involving the abuse of children and victims of rape and other assaults.

See https://www.gov.uk/government/news/first-victims-spared-harrowing-court-room-under-pre-recorded-evidence-pilot

Written by lwtmp

June 2, 2014 at 2:44 pm

Posted in Chapter 5

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