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02 Mar 2015

A wish-list for criminal lawyers

The Rt Hon Sir Brian Leveson published his Review of Efficiency in Criminal Proceedings in January. The report details a host of improvements, some basic (many of which any defendant would expect to be in place already) and some ambitious (possibly unrealistic). One impressive aspect of the report is that it is all-encompassing; Leveson appreciates that improvements need to permeate every level and aspect of the Criminal Justice System to truly have effect.

Some of the more mundane recommendations, which a CJS outsider would be disheartened to learn are currently lacking, are:

  • For the police and CPS to make appropriate charging decisions, based on a fair appraisal of what constitutes sufficient evidence, with proportionate disclosure of material to the defence, and for considerable delay to be eradicated.
  • For there to be one person who is (and is identified to be) responsible for the conduct of the case, in the police, CPS and defence, and for engagement to take place at the first available opportunity.
  • For a reduced tolerance of failure to comply with court directions, alongside a recognition of the role and responsibilities of the Judge in matters of case management. The police, CPS and defence practitioners must be held accountable for repeated default and a record of failures to comply with the Criminal Procedure Rules should be maintained.
  • That court staff are sufficiently trained on the efficient use of court technology.

Leveson also makes more technical recommendations concerning advocacy and the role of the Judge:

  • Regarding opening speeches, the jury should not be overloaded with excessive detail, and immediately following the opening, the defence should publicly identify the issues in the case.
  • The Court should be given specific and unambiguous power to exclude, of its own volition, repetitious or otherwise unnecessary evidence, and to control irrelevant or oppressive questioning of witnesses.
  • The Judge should devise and put to the jury, in all criminal trials, not just those of complexity, a series of written factual questions which act as a ‘route to verdict’, clear enough for the defendant and public to understand the basis on which the verdict was reached. This will also allow advocates to tailor their remarks and so avoid repetition of the legal principles.

There is also a more general recommendation, for a change in culture so as to use the Criminal Procedure Rules to ensure trials proceed expeditiously and commensurately with the issues in the case. So far, so good.

But the underlying irony is that many of the problems Leveson identifies are a consequence of a CJS which is already financially stretched. A key objective of Leveson’s report is to streamline the CJS and thereby save money, partly so that the Government can justify the brutal cuts to public services, including legal aid. As the Report states, “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.” But how successfully the recommendations can be implemented given the even tighter budgets within which all parties will be expected to operate remains to be seen. In short, it is unclear how the jump will be made from the current overburdened and underfunded CJS to the otherworldly system to which we all aspire but which is expected to operate on even less funding.

Even Leveson says that the review has suffered from “transformation exhaustion” due to all the pilots, initiatives and schemes already flooding the system. No one can dispute that changes are necessary. As Leveson points out, particularly with the backdrop of the crisis over remuneration for legal aid lawyers, “it must be borne in mind that a criminal justice system that is professionally staffed and effective is critical to our democratic society.” But one wonders how effective this review will be in practice.

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