Sunday, November 29, 2009

One For Practitioners

I am sorry to bring in some technical stuff, but a significant document has been issued this week - it is unsigned but I think it has the fingerprints of Leveson LJ, the Senior Presiding Judge, on it; it is certainly in his no-nonsense style.

What it all means is a significant beefing up of the requirements that trials should be carefully structured and timetabled to minimise delay and to dispose of them in the shortest practicable time. Even in the last year we have been faced with a defence lawyer standing on his dignity and refusing to give details of his line of defence as required by the CPR. The rules that I reproduce below simply forbid him to do that in future.

1 It is important to note that all participants in criminal cases, including magistrates, District Judges, and Justices’ Clerks must follow and apply the Criminal Procedure Rules. The Rules are not mere guidance. Compliance is compulsory. The word “must” in the Rules means must. (My italics)
2 The expression ‘court’ includes magistrates, District Judges, and Justices’ Clerks exercising judicial powers [CrimPR 2.2(1)].
3 Exceptions to the rule requiring the plea to be taken are rare and must be strictly justified.
4 For a full version of the guidance, see:

A) Generally
l The court2 must further the Overriding Objective of the Rules by actively managing each case [Crim PR3.2(1)].
l The parties must actively assist the court in this without being asked [Crim PR 3.3(a)]. But at every hearing, including a trial, it is the personal responsibility of the magistrates or district judge to manage the case actively [Crim PR 3.2].
l Unnecessary hearings should be avoided by dealing with as many aspects of the case as possible at the same time [Crim PR 3.2(2)(f)].
B) The first hearing taking the plea
At every hearing, (however early): l Unless it has been done already, the court must take the defendant’s plea [Crim PR 3.8(2)(b)]. This obligation does not depend on the extent of advance information, service of evidence, disclosure of unused material, or the grant of legal aid.
l If the plea really cannot be taken3, or if the alleged offence is indictable only, the court must find out what the plea is likely to be [Crim PR 3.8(2)(b)].
C) If the plea is ‘guilty’
l The court should pass sentence on the same day, if at all possible (unless committing for sentence).
l If information about the defendant is needed from the Probation Service, it may be that a report prepared for earlier proceedings will be sufficient or (depending on local arrangements) a ‘fast delivery’ report (oral or written) may be made that day.
l If a ‘Newton’ hearing is needed, the court, with the active assistance of the parties, must identify the disputed issue [Crim PR 3.2(2)(a); 3.3(a)] and either, if possible, determine it there and then or, if it really cannot be, give directions specifically relating to that disputed issue so that the next hearing is the last.
D) If the plea is ‘not guilty’
The key to effective case management is the early identification by the court of the relevant disputed issues [Crim PR 3.2(2)(a)]. From the start, the parties must identify those issues and tell the court what they are
[Crim PR 3.3(a)]. If the parties do not tell the court, the court must require them to do so.
l The relevant disputed issues must be explicitly identified and the case must be managed by the court so that the ‘live’ evidence at trial is confined to those issues.
l The parties must complete the prescribed case progression form [Crim PR 3.11; Consolidated Practice Direction V.56.2] and the court must rigorously consider each entry on the form in order to comply with its duty actively to manage the case by making properly informed directions specific to each case.
l Only those witnesses who are really needed in relation to genuinely disputed, relevant issues should be required to attend. The court must take responsibility for this (not simply leave it to the parties) in order to comply with the Overriding Objective of the Rules [Crim PR 1.1(2)(d), (e)].
l The court’s directions must include a timetable for the progress of the case (which can include a timetable for the trial itself) [Crim PR 3.8(2)(c)].
l The time estimate for the trial should be made by considering, individually, how long each ‘live’ witness will take having regard to the relevant disputed issue(s).
E) The parties’ obligations to prepare for trial include:
l Getting witnesses to court [Crim PR 3.9(2)(b)].
l Making arrangements for the efficient presentation of written evidence/other material [Crim PR 3.9(2)(c)].
l Promptly warning the court and other parties of any problems [Crim PR 3.9(2)(d)].
F) At trial
Before the trial begins, the court must establish, with the active assistance of the parties, what disputed issues they intend to explore [Crim PR 3.10(a)].
The court may require the parties to provide:
l A timed, ‘batting order’ of live witnesses [Crim PR 3.10(b)(i), (ii), (ix)].
l Details of any admissions/written evidence/other material to be adduced [Crim PR 3.10(b)(vi), (vii)].
l Warning of any point of law [Crim PR 3.10(b)(viii)].
l A timetable for the whole case [Crim PR 3.10(b)(ix)].
During the trial the court must ensure that the ‘live’ evidence, questions, and submissions are strictly directed to the relevant disputed issues.

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