Better Case Management Questions & Answers v2

Better Case Management Questions & Answers v2 February 2016 The following questions have been added since the last iteration of this document: 3.7; 3.8; 3.9; 4.6; 5.7; 5.8; 5.9. 1

Better Case Management Questions & Answers 1. Introduction 4 1.1. What is Better Case Management? 4 1.2. When does BCM begin? 4 1.3. How does BCM governance work? 4 2. Listing 4 2.1. Is there any flexibility to new BCM listing procedures? 4 2.2. Are any cases exempt from new BCM listing procedures? 4 3. Applying for a Representation Order 5 3.1. When should an application for a Representation Order be submitted? 5 3.2. Why are there delays in processing Representation Orders? 5 3.3. Can I be confident my client will have a Representation Order in place by the time his / her case reaches the Crown Court? 5 3.4. What can I do to assist the application process? 5 3.5 What if I don t have time to gather a client s evidence of means before the PTPH? 6 3.6. How quickly will I receive a Representation Order when I apply for legal aid online? 6 3.7 Why can Representation Orders pertaining to Crown Court proceedings not be backdated as they can for Magistrates Court cases? 6 3.8 It can be difficult for Defendants remanded into custody to locate evidence or information on their means particularly where there is little familial support. Would the LAA consider relaxing the requirements in such circumstances, perhaps passporting such defendants? 7 3.9 Provision of the NI number is often a barrier for those who do not claim benefits, as they may not know it. The same is true for those in custody. Could the requirement to provide a National Insurance number for applicants for whom there is no likelihood of being ineligible for Legal Aid in the Crown Court be bypassed, as it is for youths? 8 4. Payment 8 4.1. Will I get paid if a Representation Order is not in place at the time of the PTPH? 8 4.2. What if the application for legal aid is urgent? 8 4.3. In a case where there is a FCMH and a different advocate appears at the PTPH and FCMH which one can claim the fee? 9 4.4. What provision is there for the payment of wasted preparation where the advocate is prevented from attending the main hearing? 9 4.5. Are there plans for reforming the Advocates Graduated Fee Scheme (AGFS) and Litigators Graduated Fee Scheme (LGFS) to support Better Case Management? 9 4.6 The eligibility calculator provided on the LAA website can be useful in ascertaining a client s legal aid entitlement where their means are described as borderline. Can you define what is meant by borderline? Practitioners would be more willing to plan ahead if they could determine that their client is not borderline. 9 5. Digital working and the Criminal Justice System estate 10 2

5.1. Do I need to sign up to Criminal Justice Secure Mail (CJSM) to participate in BCM? 10 5.2. What should I do if prevented from taking my laptop, tablets or mobile into buildings of the criminal justice estate? 10 5.3. What should I do if I have difficulty in booking prison visits, or there are delays in time slots being made available or these are insufficiently long to conduct a conference or cancelled altogether? 11 5.4. Do I have to begin digital working now? 11 5.5 What should I submit by way of supporting evidence requirements for PPE claiming where DCS is available? 11 5.6 Who invites the Defence onto DCS? 12 5.7 When the CPS add additional items to the electronic case papers, is there any automatic notification process for the Defence? Without such a process users have to continue going into each and every document repeatedly to confirm whether anything extra has been added; this is impractical and can be hit or miss. 12 5.8 How can I ensure I properly brief my client when they are in prison with the onset of greater digital working? Do I have to print out paper copies of materials? 13 5.9 Clerks in chambers are responsible for inviting any new counsel after initial instruction to join a case hearing electronically. However, the new system does not allow use of generic email group addresses, despite these being CJSM-compliant, and individual email accounts have to be used. Unless generic group addresses can be used or addresses such as prosecutionclerks@ and defenceclerks@, it will be impossible to manage the system and reallocate cases between members. It would be difficult to have one clerk per case due to leave, holiday, meetings. Can you explain how the system is to work? 14 3

1. Introduction 1.1 What is Better Case Management? Better Case Management encompasses several initiatives targeted specifically at improving evidence handling and case management in relation to Crown Court proceedings. As BCM is procedurally-driven, and requires compliance by multiple agencies, oversight will be provided by the Judiciary, with the Senior Presiding Judge ultimately responsible for its implementation. At the heart of BCM are changes to the Criminal Procedure Rules and Case Management Practice Direction which came into force on 5 October 2015. These place a duty of early engagement on the Police, CPS, and Defence and the requirement for a named person in each of these entities to take charge of a case. The Police and the CPS are also expected to follow more streamlined processes in the preparation and proportionate service of evidence. For their part, the judiciary are expected to provide a consistent and robust case management function. 1.2 When does BCM begin? BCM rolled out to a limited number of Crown Court sites during October and November 2015 with a view to being extended across the whole of England and Wales on 5 January 2016. 1.3 How does BCM governance work? The BCM National Implementation Team (NIT), chaired by the Senior Presiding Judge, is responsible for the BCM initiative s national strategy. Answerable to the NIT is the BCM Working Group which is charged with overcoming operational difficulties nationwide. Beneath these, each Circuit has a Local Implementation Team (LIT). Every LIT is chaired by the local Resident Judge and membership will include representatives of HMCTS, CPS, LAA, the local Law Society and Bar Council, and active local defence practitioners. Many Crown Courts have also formed local LITs under the chairmanship of the Resident Judge. The local LITS report to the Circuit LIT. Any difficulties with BCM encountered by practitioners should, in the first instance, be reported to their local LIT. Queries from practitioners can be fed in via representatives of the local Law Society and Bar Council. 2. Listing 2.1 Is there any flexibility to new BCM listing procedures? Circuits may establish listing practices which result in the listing of a Plea & Trial Preparation Hearing (PTPH) exceeding 28 days, so long as it is not more than 35 days from sending from the Magistrates Court. When 28 days includes Saturdays, Bank Holidays and court closure days then cases should be adjourned beyond 28 days as opposed to being listed earlier than 28 days. This is intended to give all parties the maximum opportunity to ensure the case is properly prepared and the PTPH effective. Any such timescales must be consistent across the circuit. 2.2 Are any cases exempt from new BCM listing procedures? BCM timescales and processes will not apply to a limited number of exceptional categories of case: those featuring witnesses under 10 years old; section 28 hearings (of the Youth 4

Justice and Criminal Evidence Act 1999); terrorism cases; and murder cases. Detailed guidance will be produced to explain how these exceptional cases should be dealt with in the Magistrates' Court to avoid confusion with BCM procedures. 3. Applying for a Representation Order 3.1 When should an application for a Representation Order be submitted? Defence practitioners can make an application for Criminal Legal Aid on behalf of their client as soon as initial instructions are received and they should do so at the earliest opportunity. Submitting a correctly-completed application as soon as possible will ensure that the Representation Order is in place to cover early engagement with the prosecution and attendance at the PTPH. You should notify the court and the CPS as soon as possible that you are the defence representative in the case to facilitate early engagement. 3.2 Why are there delays in processing legal aid applications? For the vast majority of defendants there is no delay in the processing of legal aid applications. Fully completed applications where the defendant s means are not complex are granted or refused within two working days in over 90% of cases. In a relatively small number of complicated cases, a more extensive means assessment must be carried out (e.g. for self-employed clients) but even in these instances the time elapsing between application and decision is usually no more than four working days. Delays occur where the LAA has to reject an application back to the defence practitioner because it has not been correctly completed, and resubmission is required. It is acknowledged that clients finding it hard to locate evidence of means can cause delay. 3.3 Can I be confident my client will have a Representation Order in place by the time his / her case reaches the Crown Court? Figures indicate that during 2014, 94% of all defendants in the Crown Court were represented at the first hearing. In the few instances where a Representation Order is not in place, the LAA is encouraging LITs to monitor and report these occasions in order to understand the scale and cause of this problem. 3.4 What can I do to assist the application process? The submission of incomplete applications often leads to high reject rates and delay. It is essential that in order to receive a prompt response from the LAA, defence practitioners submit a properly completed legal aid application at the earliest opportunity following charge. The most common reason applications relating to Crown Court cases are rejected is that the applicant has not supplied sufficient information to enable the LAA to consider the application. Making an application via eforms offers defence practitioners the best chance of not missing information from the application. In any event, applicants should remember the following: Provide as much information as possible about your client s finances, including cases where the applicant has no income or receives help from family and friends. Where 5

your client is being supported by others it is important to make clear what support is being provided (e.g. amounts of money, or food and lodgings); Ensure that the relevant declarations are signed by the client, their partner, and the solicitor; If your client s finances are more complex (if they are, for example, self-employed, a company director or in a business partnership) the eform will automatically prompt the defence practitioner to input the required information. Paper applicants should submit both a CRM14 and CRM15 (together with a CRM15c if directed to do this); If your client is self-employed, he/she must provide accounts or a tax return (SA100). A tax calculation sheet (SA302) is not adequate evidence of self-employed income when submitted on its own. It should be accompanied by a tax return, accounts or bank statements. This is because an SA302 does not cover all types of income that a self-employed applicant may receive; Where your client is employed, you should ensure they provide the amount of their salary and most recent wage slip or salary advice, which must be from the last three months. 3.5 What if I don t have time to gather a client s evidence of means before the PTPH? A Crown Court Representation Order will not be issued until the LAA are in receipt of a fully completed application form. However, for cases involving Indictable Only offences and instances where an application for Legal Aid is only made once the case is already in the Crown Court, a concession is applied enabling the client to self-certify their means at the point of application, with evidence to be submitted within the following 14 days. (NB. The initial application, properly completed, must still contain information about the client s means it is only evidence - bank statements etc. - which need not be provided at the outset). If the client fails to provide such evidence of means within the appropriate timescale, the LAA applies an Income Evidence Sanction upon the client but does not revoke the Representation Order. 3.6 How quickly will I receive a Representation Order when I apply for legal aid online? When applying for legal aid through the LAA s eforms system, defence practitioners will generally receive notification that the Representation Order has been granted both through the eforms system and by means of an email. The Representation Order is then printed and practitioners are informed that the paper Order will be sent to them in due course by post. The LAA appreciates that defence practitioners may be cautious about undertaking work without having a physical Representation Order in their hands but this electronic notification constitutes confirmation that there is a Representation Order in place and the defence should proceed on this basis. 3.7 Why can Representation Orders pertaining to Crown Court proceedings not be back-dated as they can for Magistrates Court cases? 6

The provision to back-date applications in the Magistrates Court was introduced as a concession when means-testing was first introduced. This was not extended to the Crown Court on the basis that: the first contact many defendants have with a defence practitioner is at the first hearing in the Magistrates Court, where a Defence Duty Scheme is provided to assist unrepresented clients. In such cases there is no prior opportunity for a Legal Aid application to be made. In contrast, there should usually be ample opportunity for a practitioner to submit an application in good time for the first Crown Court hearing; the potential cost to the Legal Aid fund in Crown Court cases is significantly higher than that in Magistrates Court cases, and therefore additional controls are applied; to compensate for the lack of back-dating, a different concession is offered in relation to Criminal Legal Aid applications for Crown Court proceedings: the Defence need only supply self-declared information on their client s means at the outset, and then have a further 14 days to follow this up with the requisite evidence, whereas for Magistrates Court applications, full evidence is normally required at the outset. If the evidence is not forthcoming on or before the deadline, a sanction is applied to the client, not the practitioner. The Representation Order is not withdrawn. 3.8 It can be difficult for Defendants remanded into custody to locate evidence or information on their means particularly where there is little familial support. Would the LAA consider relaxing the requirements in such circumstances, perhaps passporting such defendants? The LAA is required to assess eligibility in accordance with the regulations and to ensure that we grant funding only to eligible defendants. In the Crown Court scheme we are also required to assess contributions accurately. The regulations support the requirement for evidence of the means of the applicant and their partner, unless they are confirmed by the DWP link to be in receipt of passported benefits or are under 18. We recognise that the evidential requirements that are waived for those remanded into custody in a magistrates case are no longer waived if that case progresses to the Crown Court. This is because, in general, the average case costs and potential fund risk exposure of an incorrect grant decision or an incorrect income contribution decision in the Crown Court is far greater than the average costs in a magistrates court case. We appreciate, however, that it can sometimes be difficult for defendants in custody to provide evidence of their income and there are provisions in place to support applicants and their solicitor: where evidence does not accompany the form(s) the LAA will assess the applicant s means on the income and outgoings (and capital and equity) declared. If the evidence subsequently supplied differs from the declaration a reassessment will be conducted; where funding is granted on the basis of the declared income and evidence is not subsequently provided Legal Aid is not withdrawn. Instead we will issue a sanction to the applicant. This means that the solicitor can continue to advise and represent whilst the legal aid contributions are resolved; where evidence is required that is over and above what is required in the magistrates court, eg. evidence of income in a custody case or capital evidence, 7

solicitors can claim an Evidence Provision Fee to enable them to contact family members, employers or banks on behalf of their client. Further information on this payment can be found at www.gov.uk/guidance/claim-the-evidence-provision-fee. 3.9 Provision of the NI number is often a barrier for those who do not claim benefits, as they may not know it. The same is true for those in custody. Could the requirement to provide a National Insurance number for applicants for whom there is no likelihood of being ineligible for Legal Aid in the Crown Court be bypassed, as it is for youths? The LAA is required to record the National Insurance number as this allows us to undertake assurance validation activity with DWP and HMRC to confirm that the Defendant has the financial means declared on their application. It also is an important identifier to ensure that we link applications properly where there are multiple records for the same person, and to help ensure that we link to the right cases in the HMCTS system. Youths are exempted in part because they do not receive a National Insurance number until they are 16 years old and because the element that entitles them to public funding is their age, rather than their financial circumstances. We are able to validate their age through routes other than the National Insurance number. 4. Payment 4.1 Will I get paid if a Representation Order is not in place at the time of the PTPH? A Crown Court Representation Order will not be issued until the LAA are in receipt of a fully completed application form. The Representation Order must be in place on the date of the PTPH as there is no pre-order cover in the Crown Court. It is therefore of critical importance that defence practitioners submit their application for a Representation Order as soon as possible after charge to assist with the prompt granting of legal aid and the smooth-running of the courts, and to ensure payment. 4.2 What if the application for legal aid is urgent? The LAA has a target of processing 90% of legal aid applications, or, in the case of applicants with complex financial circumstances, referring these to our National Courts Team, within two working days. However, it is recognised that there may be rare occasions - for example where a case is actually before the Crown Court and unable to proceed without a legal aid decision - when it is important that a decision on legal aid is made on the day of submission. In such cases the judge can request that the legal aid application is expedited and HMCTS is then able to escalate an application to the LAA for consideration. Senior managers in HMCTS will contact the LAA s Criminal Applications Team (or CAT) directly to fast-track a decision on an application. The LAA has provided direct dial numbers together with mobile numbers in the Magistrates and Crown Court Manuals for the use of senior managers. This process applies to all courts. NB. This is a decision for the court, and not the defence practitioner. 4.3 In a case where there is a FCMH and a different advocate appears at the PTPH and FCMH which one can claim the fee? 8

Instead of the PCMH being the means of identifying the Instructed Advocate (if not notified before), now the first hearing at which the assisted person enters a plea, whether the PTPH or an FCMH, will attract the fee. (Regulation 5(8) of The Civil and Criminal Legal Aid (Amendment) (No.2) Regulations 2015). 4.4 What provision is there for the payment of wasted preparation where the advocate is prevented from attending the main hearing? In accordance with paragraph 18 of Schedule 2 of The Criminal Legal Aid (Remuneration) Regulations 2013, there are certain limited circumstances where payment may be claimed by a defence advocate for wasted preparation. There are five circumstances: (a) the trial advocate is instructed to appear in other proceedings at the same time as the main hearing in the case and has been unable to secure a change of date for either the main hearing or the other proceedings; (b) the date fixed for the main hearing is changed by the court despite the trial advocate s objection; (c) the trial advocate has withdrawn from the case with the leave of the court because of the trial advocate s professional code of conduct or to avoid embarrassment in the exercise of the trial advocate s profession; (d) the trial advocate has been dismissed by the assisted person or the litigator; or (e) the trial advocate is obliged to attend at any place by reason of a judicial office held by the trial advocate or other public duty. These provisions can only be paid for cases which go to trial and run for five days or more, or for cracked trials with pages in excess of 150 PPE. These provisions apply only where at least eight hours of preparation has been done. See: www.legislation.gov.uk/uksi/2013/435/schedule/1/made 4.5 Are there plans for reforming the Advocates Graduated Fee Scheme (AGFS) and Litigators Graduated Fee Scheme (LGFS) to support Better Case Management? The MoJ is currently considering the Bar Council s proposals for reforming the Advocates Graduated Fee Scheme and will consider the Law Society s proposals for the Litigators Graduated Fee Scheme when they have been put forward. The intention of the revised fee schemes is to reduce or remove reliance on PPE, however we will also be assessing the proposals for compatibility with the objectives of Lord Leveson s review (including BCM). 4.6 The eligibility calculator provided on the LAA website can be useful in ascertaining a client s legal aid entitlement where their means are described as borderline. Can you define what is meant by borderline? Practitioners would be more willing to plan ahead if they could determine that their client is not borderline. A client might declare or evidence disposable income which is ostensibly above the 37,500 limit for Crown Court eligibility. However, we calculate eligibility based on the applicant s family circumstances and outgoings. (Income is weighted dependant on whether an applicant has a partner and children). The calculator allows practitioners to record applicants household circumstances and applies the relevant weightings, thereby giving an indication of the likely outcome of the actual means assessment. Practitioners may find that clients whose income appears to be close to the upper limit for Legal Aid are, in fact, not borderline once all the weightings and allowances have been taken into account. 9

5. Digital working and the Criminal Justice System estate 5.1 Do I need to sign up to Criminal Justice Secure Mail (CJSM) to participate in BCM? Digital working and the Digital Case System are key facilitators to BCM and currently in excess of 86% of defence practitioners have already signed-up to CJSM. While sign-up and usage are not mandatory until the introduction of the new Crime contract, possession and use of CJSM are now part and parcel of digital working and likely to be a requirement placed on defence practitioners by the court. The LAA encourages defence practitioners to fully engage with digital working which will assist in preventing delays and cutting costs, both for the courts and practitioners themselves. 5.2 What should I do if prevented from taking my laptop, tablets or mobile into buildings of the criminal justice estate? Your response should vary depending on whether the building is a court, police station or prison but you should also draw your experiences to the attention of your Local Implementation Team who can collect such instances and seek resolution at local level and, if necessary, also escalate at a national level. Courts Guidance issued by the National Offender Management Service (NOMS) in March 2012 states that legal advisers / defence practitioners are authorised to bring into court holding cells any IT equipment necessary for consultation with their clients and on cases on which they are engaged with that particular client. The equipment you can use includes mobile phones in the wider courthouse but these should be switched off and out of sight in the courtroom itself. If you have a problem you should email the CJS Efficiency Programme at: CJSEfficiency@cps.gsi.gov.uk for details of courthouse equipment issues. Your details should include: your name and the name of your firm; date and court where the problem was encountered; details of the equipment and the nature of the court s objection. Police Stations The Association of Chief Police Officers and The Law Society agreed joint guidance in August 2011. This explains that the presumption is to allow the solicitor to retain and use mobile telephones, laptops and hand held devices in custody suites to allow them to be more effective and efficient in carrying out their duties. A custody officer will only seek the surrender of any such device where there are reasonable grounds to believe that surrender is necessary to prevent unauthorised communications. Problems should be put in writing and sent to the local chief constable. See also: Professional Practice: Criminal Justice see under 2011 for guidance on custody suites. Prisons 10

NOMS guidance (March 2012) states that prisons should allow solicitors to bring necessary IT equipment into legal visits or implement alternative arrangements which allow solicitors to properly brief their clients electronically. Mobile devices are permitted in open prisons if the local open prison regulations allow it. In general, however, there is no absolute authority for practitioners to bring in and/or possess mobile telephones on the prison estate. Practitioners should send details of problems in writing to the Governor/Director of the establishment concerned. If necessary, it can be escalated to the NOMS Deputy Director of Custody or equivalent. See: CJS efficiency programme: defence practitioners to download digital working guidelines and Prison Service Instruction extract. 5.3 What should I do if I have difficulty in booking prison visits, or there are delays in time slots being made available or these are insufficiently long to conduct a conference or cancelled altogether? Practitioners should send details of problems in writing to the Governor/Director of the establishment concerned. If necessary, it can be escalated to the NOMS Deputy Director of Custody or equivalent. See: CJS efficiency programme: defence practitioners to download digital working guidelines and Prison Service Instruction extract. You should raise such instances and seek resolution at local level and, if necessary, also escalate at a national level. 5.4 Do I have to begin digital working now? As digital working is an important enabler for BCM procedures, some courts have been eager to see all parties working exclusively electronically from the outset. We are aware that not all firms are ready for this. Although the existing Crime contract does not require practitioners to work digitally at present, any firms holding a Crime contract after April 2016 will be required to work digitally with other CJS participants, both during and outside of hearings. 5.5 What should I submit by way of supporting evidence requirements for PPE claiming where DCS is available? There is no change to existing requirements for defence practitioners. Defence practitioners will still be expected to supply an account of prosecution evidence to justify the PPE element of their LGFS/AGFS claims, because LAA caseworkers do not yet have access to DCS. This can consist of: Committal bundle or NAE front sheets endorsed with the CPS / Prosecuting authority page count; index of evidence; paginated pages; or any other objective evidence that has been generated by the prosecution. Functionality is being developed in DCS to download this information to a PDF file which can be printed and submitted alongside the bill or, when Crime Billing Online is launched, attached electronically to the claim. 5.6 Who invites the Defence onto DCS? 11

Defence practitioners are unable to view case material uploaded to DCS without preauthorised access. Access is by way of invitation and it is the court's responsibility to invite practitioners to access the digital case file. If the Defence representatives are known when the case is registered on DCS then the court should invite the Defence solicitor automatically. If they are not known, then whichever agency (CPS or HMCTS) first becomes aware of the Defence representative's details will invite them to join the system using the firm s domain email - although this is predicated on Defence representatives identifying themselves in advance of the PTPH. Once invited to have access, the Defence firm will be responsible for inviting instructed counsel and chambers into the case. The Defence firm should select People from the green button menu in DCS and then select invite new participant, inviting an individual advocate using the individual s full email address and selecting defence advocate for the role. The same process will be followed for inviting chambers clerk(s) using the full generic chamber s clerk email address. The process for management of late returns within chambers allows a clerk to remove outgoing counsel and invite new counsel using the process outlined above. The process for management of late returns where the brief will be sent to another set of chambers will task the instructed defence firm with the responsibility for removing the existing instructed advocate and chambers clerk and following the above process to invite new advocates and chambers clerks. This procedure should prevent advocates arriving at court without access to DCS and case material. If such an instance does occur then instructed advocates should contact the Defence solicitor firm to request access. For contingency purposes if this is not viable then advocates should request access from CPS prosecution advocates or HMCTS staff. 5.7 When the CPS add additional items to the electronic case papers, is there any automatic notification process for the Defence? Without such a process users have to continue going into each and every document repeatedly to confirm whether anything extra has been added; this is impractical and can be hit or miss. Following feedback from users the DCS has introduced a notification system to show when case papers are updated. No-one wanted an email every time there was a change to a case they were working on, so an alert bell was devised to notify users when documents were uploaded into DCS. When users click on the alert bell they are presented with a list of recent changes to "your cases". The alerts are shown when users first log into the system and the alert bell displays the number of alerts for that user (see screen shot below). If users then click on the alert bell they are taken to a dashboard featuring their notifications in greater detail (see below). Users can then view their notifications, which will take them directly into review of evidence mode. 12

5.8 How can I ensure I properly brief my client when they are in prison with the onset of greater digital working? Do I have to print out paper copies of materials? Solicitor bringing in IT equipment for legal visits in prisons NOMS Prison Service Instruction (PSI) guidance issued in March 2012 makes clear that prisons should allow solicitors to bring necessary IT equipment into legal visits or implement alternative arrangements which allow solicitors to properly brief their clients electronically. Computers must be small, self-contained portable devices such as laptops or tablets. Any IT equipment which has built in Wi-Fi, 3G or other networking capabilities is allowed provided that the network capability is switched off and any external dongle or SIM card is removed where practical and no attempt is made to transmit or receive images, sound or information in or out of the prison by electronic communications. Computer equipment may contain built in cameras, but must not be used to take photographs or video within any prison. Sound recordings are permitted for the purposes of advising clients on the matter for which they are engaged. Prisons may still impose additional administrative restrictions on items allowed into the prison where there are reasonable grounds to believe that these restrictions are necessary to prevent unauthorised communications by prisoners or other breaches to security. They will take into account the prisoner type involved and the category of prison in question, but any such action must be defensible in case of legal challenge. Additional information and guidance can be found in the Prison Service Instruction (PSI) at the follow link: www.justice.gov.uk/downloads/about/about-the-justice-system/transformingjustice/extract-psi-260312.pdf 13

Practitioners are advised to check in advance of any prison visit to confirm local arrangements and restrictions. Prisons must ensure that they are clear about any local restrictions at the point of booking; that any local measures are well publicised, issued to all relevant solicitor firms and are made available on their website. If practitioner s experience any problems with the operation of this policy and believe unreasonable restrictions have been imposed, then complaints can be made in the first instance to the Governor of the prison concerned. If practitioners remain dissatisfied disagreements may be escalated to the regional manager (Deputy Director of Custody or equivalent) and the Law Society holds details of DDC offices and the prisons they cover. Direct access to IT by defendants in prison in order to review digital materials Where required, the defendant (or their legal representative) can request an Access-2- Justice (A2J) laptop which are available in all prisons, in order to review digital materials such as prosecution evidence and conduct legal work under controlled access conditions. In accordance with the European Convention on Human Rights, the prison has an obligation under Article 6 (the right to a fair trial) to consider requests to allow defendants to use IT to assist with legal work. However, the prison are not obliged to provide IT or allow IT to be provided, unless the defendant requesting it satisfactorily demonstrates that a refusal will unreasonably hamper and disadvantage them i.e. because a piece of evidence might only be available in digital format or be so complex or unwieldy in paper format as to be impractical to view without the use of IT equipment. With the onset of greater digital working through the introduction of Crown Court Digital Case System (CCDCS) and the Common Platform, NOMS recognise the increasing need to facilitate secure and safe prisoner access to digital materials and they intend to pilot specially configured e-readers which have appropriate security restrictions and controls imbedded within them. This pilot is due to start in the spring and if successful will be rolled out nationally. The availability of Access to Justice laptops, complimented by the future introduction of e- readers, should allow defendants to have read-only access to digital materials in custody where it is necessary for them to prepare for proceedings. This should avoid the need for the Defence to print out large volumes of material. 5.9 Clerks in chambers are responsible for inviting any new counsel after initial instruction to join a case hearing electronically. However, the new system does not allow use of generic email group addresses, despite these being CJSM-compliant, and individual email accounts have to be used. Unless generic group addresses can be used or addresses such as prosecutionclerks@ and defenceclerks@, it will be impossible to manage the system and reallocate cases between members. It would be difficult to have one clerk per case due to leave, holiday, meetings. Can you explain how the system is intended to work? 14

The invitation process on the DCS is designed to ensure that external legal professionals including chambers clerks are individually invited into a case in a specified role. At present, clerks are registering with their role as either Defence or external Prosecuting advocate, following which the CPS/Defence will invite and define their user role at the point of invitation. A clerk who is invited into a case can then cascade the invitation to other clerks and counsel but only to those undertaking the same role as the clerk cascading the invitation. Chambers clerks cannot be given both prosecution and defence access on the same case with current functionality. This is to ensure that specific clerk(s) have access to prosecution or defence material, and that roles are split within chambers, similar to how roles would be split between clerks in a paper brief environment. Self-selection of DCS roles for clerks would not satisfy security / IA principles, and even if/when a chambers clerk role is added to the DCS it is likely that it will be split between chambers clerk prosecution and chambers clerk defence, and the invitation process will still be completed by inviting individual clerks. The only way that security and IA obligations are to be satisfied is if individual clerks are invited to a case on DCS. All clerks from a chambers should be invited at the point of instruction so that returns and absence can be managed effectively. This obviously presents an issue when the second party chooses to instruct counsel from the same chambers, because if all clerks have been invited for the opposite side then inviting any clerk to access your material will be impossible. In such circumstances the relevant party would need to contact chambers and agree which clerk(s) should be disinvited from the opposite side s case and given access to their case material so they can manage the case effectively. 15