CLSA Criminal Procedure Rule Committee Magistrates courts preparation for trial form: Comments on use by The Criminal Law Solicitors Association

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1 CLSA Criminal Procedure Rule Committee Magistrates courts preparation for trial form: Comments on use by The Criminal Law Solicitors Association Criminal Law Solicitors Association Suite 2 Level 6 New England House, New England Street Brighton, BN1 4GH DX 2740 Brighton Tel:

2 The Criminal Law Solicitors' Association is the only national association entirely committed to professionals working in the field of criminal law. The CLSA represents criminal practitioners throughout England and Wales and membership of the Association is open to any solicitor - prosecution or defence - and to legal advisers, qualified or trainee - involved with, or interested in, the practice of criminal law. The CLSA is responding to the consultation on behalf of its members. In many Criminal Justice areas, the Preparation for Trial form was not brought into use in October Many areas had spent a great deal of time designing and refining their own case management form which was retained in preference to the CP Rules form. Even now, six months on from the intended commencement date for the use of the form, there are areas where the form has not been adopted and some where the court, having adopted the form, have reverted to previous locally designed forms. Where the form is in use the following comments have been made: 1. Where a police force has a good reputation for identifying those cases where a not guilty plea is likely to be entered on first appearance, the CPS are provided with adequate information to complete Parts 1 and 10 which enables them to complete those sections before court. 2. However many police forces do not have a good track record for identifying such cases which means that a case comes before the court as an expected guilty plea where the CPS have not completed the form. In these cases, the CPS file often does not contain sufficient information to complete the form in court or a disproportionate amount of time is taken up in doing so in a busy court. Very often these files also lack listing information / witness availability. 3. The combination of CJSSS and Streamline Process results in police file building that produces little upon which a case can be listed where a not guilty plea was not anticipated, thus resulting in delay. 4. Since the reporting of the decision in the case of R (Firth) v Epping Magistrates Court, [2011] EWHC 388 (Admin), defence practitioners have been more reluctant to commit defendants to specific answers to the questions in Part 2 Section 8 of the form, especially where they are not in possession of full instructions as to all aspects of the case. 5. Defence practitioners are often retained by their lay client at the door of the court on the day of their first appearance. Often practitioners did not advise the defendant at the police station and come to the case with no prior knowledge of its existence in a busy court list. This is especially true of the Duty Solicitor who may have several clients both on bail and in custody to deal with, some of whom wish to plead not guilty. 2

3 6. In many areas where a defendant is kept overnight in police custody to appear before the next available court, the CPS representative will not have been given any time to consider the file nor complete Parts 1 and 10. In these cases, the completion of the form occupies court time and may result in inadequate information on the form. 7. Duty Solicitors find it especially difficult to complete the form as not only will they have had the briefest contact with the defendant but they will be understandably reluctant to bind a defendant who may be unrepresented, or represented by a different solicitor at trial to answers, particularly in Part 2 Section 8, which could have an adverse effect on the trial or result in wasted costs. 8. In many cases, the Police and CPS will have had weeks or months to prepare their case whilst a defendant remains on police bail and yet even the best prepared defence solicitor with the most conscientious client will usually have had less than a week and often, as mentioned above, less than an hour to prepare a case. 9. The Criminal Procedure Rules raise an expectation of plea being entered at first appearance and the consequence of CJSSS and the Magistrates courts preparation for trial form means that defence advocates are expected to be virtually trial ready by the beginning of that first hearing. 10. The equivalent form in the Crown Court (the PCMH Form) is not completed by the advocates until all primary disclosure, disclosure of unused material, photographs, exhibits and records of interview has been made and very often after a defendant has signed a Defence Statement. The magistrates courts preparation for trial form is required at for too early a stage and certainly before the defence has had the time to consider the defendants interview (either recording or ROTI). Whilst many courts provide the defence with audio replay equipment at court they list cases in such a way that they will not give time for recorded interviews to be played. In areas where audio tapes are still in use, this can extend to more than one 45 minute tape and in areas where digital recording is in use a single disc can last up to 2 hours and there is anecdotal evidence to suggest that Interviewing officers in these areas now take longer to conduct interviews as there is no time pressure. 11. There is no doubt that in some areas the CPS representatives do not review the files for not guilty cases and complete Parts 1 and 10 resulting in court time being taken up in completing the form. This can take up to 30 minutes per case depending on the degree of pre court preparation which has been undertaken. 12. In some courts, the form is used in all but the simplest motoring cases where few if any of the issues raised by the form need to be addressed whilst in others it is used in every case regardless of complexity. 13. In some courts, District Judges take an active part in the completion of the form either by completing it themselves in court with the answers they are given to questions they pose or requiring the completed form to be handed to them for checking. 3

4 14. In some courts the legal adviser completes the form as they had previously completed its predecessor. 15. Experience suggests that few lay benches become involved in the completion of the form and in some courts lay benches retire whilst the advocates and legal adviser complete the form thus interrupting the flow of cases in a busy court. There seems little doubt that the need to complete the form has led many courts to reduce the size of lists per court session to take account of the extra time needed. As the volume of cases coming to court has fallen across the country this may not be as obvious as would otherwise have been the case. 16. Anecdotal evidence suggests that where the form is in use it has had little impact in the rate of ineffective (or cracked) trials. 17. One of the difficulties experienced by the defence practitioner in completing the form arises from the uncertainties which exist as to whether a defendant will be legally aided or not. In some areas the centralisation of legal aid administration means that whilst a defendant may complete the necessary forms at court upon his first appearance a decision on grant or refusal (or rejection) is made remote from the court many days later. Defence practitioners are understandably reluctant to spend unremunerated time with a defendant completing both legal aid forms and taking sufficient instructions to complete the preparation for trial form where the most they might be paid is Defence practitioners are equally concerned that completion of the form without the full and careful consideration of all aspects of the case could leave them open to allegations of professional negligence by their lay client or a wasted costs order made by the court. 19. Whilst a requirement to make progress at the first hearing is important the guidance on progress should recognise the position of a defence practitioner who has been instructed at the door of court and has no legal aid (or is the Duty Solicitor) and countenance a short adjournment to resolve issues which might in the long run save both court time and money. 20. Since the introduction of the form, anecdotal evidence suggests that in some places the length of trial time estimates has gone up and witnesses are still being required to attend who might otherwise be agreed because of the insistence of courts on making progress at all costs without recognising that not all cases are susceptible to Simple Speedy process which this form supports. 21. Evidence from different parts of the country suggests that there has been a substantial increase in the time taken to deal with each case which is being listed for trial especially in those areas where the CPS have not completed Sections 1 and 10 before court convenes as this often denotes cases which have had no pre court preparation thus requiring the preparation to be done in court. 4

5 22. Since CJSSS and Streamline Process different courts have adopted different policies with regard to the provision of Advance Information packages and their content. In some areas AI packages are not available until the start of the court session whereas in others they are available as much as a working day before the relevant session. However even where AI is available well in advance of the hearing little work can be done by a Defence Practitioner as the CPS rarely supply the partly completed Preparation for Trial form until the hearing itself. Whilst in some cases attaching the partly completed form to the AI package may assist the crucial factor is the attendance of the defendant as the form cannot be completed without their instructions. 23. In Multi Defendant cases different courts have adopted different policies. Some require a single composite form for all defendants. Where there are more than 2 defendants the layout of the form is not conducive to this approach. In other areas a form is required from each defendant which creates administrative difficulties in coordinating the diverse information. Many courts then photocopy the entire form and distribute it to the parties where previously the form had been in a self carboning format easily distributed at the close of the hearing. 24. In some courts the form is only used in the listing of cases where there are 5 or more live witnesses with a shortened version for cases where there are less than 5 witnesses where in other courts it is used in multi defendant multi witness cases of all types. 25. Practitioners question the value of the form as a case management tool if it is completed at such an early stage in proceedings that it is difficult to give accurate and complete indications without full disclosure of the Prosecution case and full instructions. It is very rare for any Defence Practitioner to be in a position to identify the proposed Defence witnesses at such an early stage in proceedings and this may have a significant effect on the time estimate given. Defendants are often in the habit of believing they will be in a position to call numerous witnesses who rarely if ever materialise with the consequence that trials are overlisted. 26. There remains a significant risk that inadequate or misleading AI can affect the advice given to Defendants. It is not unheard of for a case summary to indicate that a Full and Frank admission was made only to find at a later stage in the proceedings that a suspect raised issues of self defence to assault or lack of knowledge or belief in handling cases. 27. One change that may address some of the concerns raised above is a general extension of time between charge and first appearance to enable some defendants to instruct solicitors before the first date of hearing. (Although we appreciate not all defendants will). 5

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