Monday Message 14.12.15
Mark Fenhalls QC
We have all seen or heard about an increase in unrepresented defendants in the criminal courts. But what impact are they really having on access to justice? If you have had any recent experience of dealing with unrepresented defendants please fill in this anonymous survey for a campaigning charity. Even if it is not part of your personal experience, please encourage anyone who might to contribute – it must be a daily event when prosecuting lists for example.
Better Case Management and Digital Case Systems – the experience the early adopter Courts – some practical thoughts
By now Hotmail and the like will be a thing of the past, your cjsm chambers email will be up and running and you will have registered on the Professional Court Users network.
Sometime in early January you will get a call from a solicitor who tells you she has a great case that has just been charged and is keen to instruct you. What are the practical challenges you may face long before you try filling in the new exciting PTPH form in the days before you get to court…
The early adopter courts are providing valuable insight about what does and does not work well. The system is still in development, and technocrats and Judges alike are willing to hear suggestions for improvements and adjustments. There are the inevitable IT teething problems but these are being worked through and cleared up. The Judges who are using the system have taken a day or two to become familiar with it and I gather the court staff think it is terrific once up and running. Now the spotlight has shifted to the advocates…
Broad principles first (with apologies if required to those still drafting “process manuals”). When the case and “Initial Details of the Prosecution Case” are sent from Magistrates, someone at the Crown Court creates the case and should invite the defence to join. The ‘file’ at this stage may only contain the “IDPC” i.e. MG4, MG5 and previous convictions, with key witness statements and exhibits included for anticipated not guilty cases. Perhaps soon we will reach a happy day when all the case papers (following that all singing and dancing new shiny frontloaded process) should be loaded on to the system. Sometimes they may be.
At some point the responsibility for inviting the defence to join the system shifts to the CPS. I am not altogether clear yet when or how this is meant to happen or if there are people at either the court or the CPS who are responsible for this process. Almost certainly not. I frankly don’t know why HMCTS has agreed that the responsibility has to fall on them, because I always thought that it was the prosecution’s responsibility to “serve the papers”, which soon will of course mean “provide digital access”. But such decisions are above my pay grade. No doubt all of this will shake down further through January and February and perhaps by Easter we will emerge in to the shining uplands where it all goes smoothly…
The CPS says that any lawyer seeking an invitation from them will need to provide the name of defendant, date of birth if known and URN of the case so that they can ensure that access is provided to the correct case. I wonder whether anyone has considered if that is sufficient protection. After all it would not be difficult for a journalist, or someone looking to poach a case to obtain such details… There will be one national process to complete these actions which should mean no need for local courts to set up their own procedures. Perhaps it would be better if the system were triggered by some code generated when the Representation Order was granted. That might be far more secure and automated.
Obviously if you are only briefed the night before the PTPH that is not conducive to “better managing the case”. But assuming you were told about that great case and booked several days before I urge you to try and track down a digital invitation so that you can prepare properly. Anecdote and experience shows that most of the time the defence has not been granted access before the day of the PTPH. Court staff and advocates have generally shown the usual levels of goodwill and desire to make things work, and sorted the issues on the day.
But the system also reveals that there have been times when defence advocates defence have not accessed the case file before the day of the PTPH, even when the defence solicitor had been granted access a long time before… so far I have heard of only one team (barrister and solicitor) which has appeared totally unaware that the case was a PTPH or that the case file was digital at all. The barrister in question had no secure email address and could not access the wifi so he could not even fix the problem at court…
We all know this is not good enough and, without wishing to sound too pious, chambers (HoCs and Management Committees alike) have a responsibility to make sure their members and staff know and understand this brave new world.
Wifi will work better in some court rooms than others. Multi-handed cases present challenges to form completion. Other parts of the CJS will not be loading things on the system at the right time and access with digital material to prisons will continue to be a challenge. All these things are other people’s responsibilities. Please make sure the fault does not lie with you.
Warned Lists – Help Needed
We continue to try to persuade the listing authorities that warned lists are bad for the CJS and should be phased out as rapidly as possible. I think the CPS agrees. All advocates know how uncertainty over dates promotes poor practice and causes unnecessary misery to witnesses.
Frankly warned lists are fundamentally inconsistent with Better Case Management and as far as the advocate is concerned, ‘ownership’ of a case becomes next to impossible where there is no certainty as to who will conduct the trial. At best, preparation will be undertaken pro bono by an advocate who cannot do the trial. At worse, preparation does not take place as there is no ownership and no remuneration.
Please do not leave it up to the CBA to keep banging on about this in isolation. We are always helped by hard evidence. On some circuits, there is little or no use of warned lists. In other areas, they are endemic. We are told that in some areas there are rolling warned lists with no backstop, which can and do run for months on end. How on earth does the traumatised victim of a burglary, or someone complaining of an assault of any sort, put the events behind them and get on with their lives faced by such uncertainty?
To get a better understanding as to how matters operate across the country, would you please email a short account of what goes on in your area to Aaron. Do not assume someone else will do this; such assumptions inevitably are misplaced. We would like to know for example: whether an area uses warned lists or not; how long are they for; is there a consistent pattern why a case suitable for a fixture over a warned list; how far in advance fixtures are currently being listed; how far in advance bail warned lists are being listed; how frequently do cases come into warned lists.
Include whatever other details seem to you to be pertinent. These could include listing delays, examples of things going wrong, or the effect on witnesses. Wherever possible please provide specific case names and court centres. If you wish to have your email treated in confidence, it will be.
Thank you for your help