Better Case Management in the UK Criminal Courts

In January 2015 the Rt Hon Sir Brian Leveson published his Review of Efficiency in Criminal Proceedings. This review made a number of recommendations aimed at improving the efficiency of the criminal justice system to ensure that cases proceed through the system expeditiously.

Partly as a result of the Leveson Review, a national Better Case Management (BCM) scheme will be rolled out across UK courts today, having been trialed in a selection of courts in late 2015. BCM is aimed at improving the way in which cases are progressed through the court system with a view to maximising efficiency and achieving the best use of court time.

BCM is based on the following overarching principles identified by the Leveson Review:

• Getting it right first time
• Case ownership
• Duty of direct engagement
• Consistent judicial case management

The principal aims of BCM are to build robust case management rules, reduce the number of hearings that take place in courts, promote maximum participation by (and communication between) all parties within the system and ensure compliance with the Criminal Procedure Rules.

Some of the key changes being introduced by BCM, and the consequent changes to the Criminal Procedure Rules made in October 2015, are:

• New Criminal Procedure Rule 3.3(2), which creates an expanded definition of how parties are obliged to “actively assist” the court by, among other things, identifying disputed issues and communicating with one another at all times;
• New Criminal Procedure Rules 8.2 & 8.3, which require that Initial Details of the Prosecution Case (IDPC) must be served for all types of offences, including indictable only offences. The new rules also create an expanded definition of IDPC which extends to witness statements and exhibits that a prosecutor has available which are material to plea, allocation and sentence. IDPC must be provided by the Prosecution no later than the first hearing in the Magistrates Court;
• Eradication of preliminary hearings in the Crown Court. Instead there will now be a Plea and Trial Preparation Hearing (PTPH) within 28 days (or, in some courts, 21 days) of a case being sent to the Crown Court, at which the defendant’s plea would ordinarily be entered. Completion of an expansive PTPH Form by all parties will also now be mandatory;
• A Further Case Management Hearing (FCMH) will now only take place in identified complex cases or if a Judge decides that it is necessary. Therefore, if no FCMH is required, the next court appearance after the PTPH will be for trial;
• Introduction of a Disclosure Notification Form which must be served 7 days in advance of the PTPH for document heavy cases. Thereafter the CPS will regularly review disclosure by updating a Disclosure Management Document;
• Criminal Procedure Rule 16.4 abolishes the 7 day time limit for objecting to Section 9 Witness Statements;
• Criminal Procedure Rule 19.2 creates a positive duty on experts to assist in case management;
• Criminal Procedure Rule 3.5 (2) (d) and 4 encourages electronic communications and web-based document delivery services.

Better case management?

The focus of BCM is on streamlining the judicial process in order to achieve a swifter resolution of cases. As a result of BCM, defence solicitors will need to take instructions and give advice on plea (including credit for an early guilty plea) within an accelerated period of time between service of IDPC and the PTPH. It will no longer be possible to wait for service of the Prosecution’s case prior to a defendant having to enter a plea (the 50 and 70 day time limits for serving the full case papers after sending remain the same). Under the new BCM system, a defendant will thus be required to attend a PTPH to enter a plea within 28 days of their case being sent to the Crown Court and, in many cases, this will be on the basis of limited evidential material falling within the definition of IDPC (which will usually be no more than the MG5 in police cases), and before the Prosecution has served the full case papers that form its case against the defendant.

One of the most glaring issues with the BCM system is that there are no enhanced sanctions to deal with parties who do not comply. For example, it remains unclear as to what will happen if IDPC is not served before a first Magistrates Court hearing or a Disclosure Notification Form is not completed by one of the parties. Will the only way to deal with a disregard for the new rules be to list the matter before a Judge, and will wasted costs orders become more common? If so, this will clearly prove counter-productive to the desire to reduce the number of hearings in court. It also seems inevitable that defence solicitors in some circumstances will find themselves with no option but to seek listings to argue about a lack of sufficient disclosure to enable their client to be properly advised as to plea.

No-one would dispute that improving the efficiency of the UK criminal justice system is desired, particularly in light of the grave cuts to legal aid that successive Governments have imposed. However, in order for BCM to stand a chance of being successful, it will require a complete commitment from all parties, including those on limited funding, to ensure that its rules are adhered to.