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complex fraud cases
The 1987 Act provided that a preparatory hearing could be ordered by the judge
for the purpose of identifying the issues likely to be material to the verdict of the
jury, assisting their comprehension, expediting the proceedings or assisting the
judge™s management of the trial (s. 7(1)). The judge has extensive powers under
the 1987 Act to order both sides to prepare and serve any documents that appear
to him to be relevant.

Preparatory hearings under the Criminal Procedure and Investigations Act 1996
(CPIA)
CPIA, s. 29 enables a judge, on application or otherwise, to order a preparatory
hearing in a case of such complexity, seriousness701 or length that he thinks sub-
stantial bene¬ts will accrue from such a hearing. The purpose of such a hearing
is to identify material issues, to assist the jury™s comprehension of the issues, to
expedite the trial or to assist the management of the trial (s. 29(2)). The
preparatory hearing is treated as the start of the trial (s. 30). The judge at such
a hearing can make binding rulings. There is an appeal from a judge™s ruling on
the admissibility of evidence or any question of law.702

Pre-trial rulings
CPIA, s. 40 provides that the court may make a ruling as to the admissibility of
evidence or any other question of law at a pre-trial hearing, whether on applica-
tion or on its own motion. A pre-trial hearing is one that takes place before the
start of the trial which is de¬ned to mean when the jury is sworn in (s. 39(3)).
The signi¬cance of this is that it avoids having to swear-in a jury and then send

700
For an upbeat statement of the aims of the E¬ective Trial Management and the Criminal Case
Management Framework from its manager see 57 Criminal practitioners newsletter, Law
Society, July 2004, p. 3. The pilot studies, it stated, had shown that ine¬ective trial rates had
been reduced, courtroom time had been freed and witnesses had been saved from having to
come to court needlessly.
701
The word ˜seriousness™ was added by the Criminal Justice Act 2003, s. 309.
702
As to when it is appropriate to hold di¬erent types of preparatory hearings see Attorney
General™s Reference (No 1 of 2004) R v. Edwards Note [2004] EWCA Crim 1025, [2004] 4 All
ER 457.
351 Case management and pre-trial preparation


them away for hours or days while lawyers argue legal points. CPIA, s. 40 enables
a judge who makes a ruling under the section to order that the ruling is binding,
but then goes on to say that such a ruling can be varied by the trial judge ˜if it
appears to him that it is in the interests of justice to do so™ (subsection (4)).
However, neither party can seek to obtain a variation in a binding pre-trial ruling
unless there has been some material change in circumstances (s. 40(5)).

Magistrates™ courts “ early administrative hearing (EAH)
The EAH is intended for defendants who intend to contest their guilt. The court
typically takes a plea before venue (p. 337 above), determines mode of trial and
sets pre-trial review and trial dates as necessary. The Crime and Disorder Act
1998, s. 50 gave single magistrates and court clerks the power to run EAHs.703

Magistrates™ courts “ pre-trial review (PTR)
Many magistrates™ courts developed their own local forms of PTR as a way of
dealing with pre-trial matters such as which witnesses need to attend, re¬ne-
ment of charges, assessment of the time needed for the hearing and similar
aspects of case management.

Empirical evidence about the value of pre-trial hearings
It should not be assumed that pre-trial hearings perform their desired func-
tion. Contrary to what common sense would suggest, the existing empirical
evidence about pre-trial hearings suggests that, instead of simplifying trials and
saving costs, such hearings may do the opposite “ increase costs and lengthen
trials:
• In the Crown Court Study, judges were asked whether they thought the pre-
trial review had saved much time and money. As many as two-thirds (66 per
cent) said no. A quarter (24 per cent) said that a little time and money had
been saved. In 8 per cent a fair amount of time and money had been saved. A
˜great deal™ had been saved in only 1 per cent.704
• Professor Michael Levi™s study for the Runciman Royal Commission of
serious fraud cases stated with regard to ordinary pre-trial reviews:705 ˜none
of the defence lawyers I interviewed argued that pre-trial reviews had any sig-
ni¬cant e¬ect on the development of the case . . . The problem is that the
judge in the pre-trial reviews is seldom the trial judge, has seldom read the
papers, and therefore understandably does not wish to become embroiled in
complex matters™.706

703
For an assessment of the pilot studies of EAHs see P. Tain, ˜Reducing Delay: Case
Management™, Solicitors™ Journal, 15 October 1999, p. 959.
704
M. Zander and P. Henderson, Crown Court Study (Royal Commission on Criminal Justice,
Research Study No. 19, 1993) section 2.8.9.
705
Pre-trial reviews are not the special preparatory hearings envisaged for serious fraud cases by
the Roskill Committee which were established by the Criminal Justice Act 1987.
706
Royal Commission Research Study No. 14, 1993, p. 105.
352 Pre-trial criminal proceedings


• The fate of the more formal preparatory hearings under the serious fraud
regime is equally discouraging. The Roskill Committee said that a full day
should be set aside for preparatory hearings.707 In fact, however, in many of
the cases brought by the Serious Fraud O¬ce, preparatory hearings take
weeks or even months. (In Guiness 1, the preparatory hearing took three
months!)
• The only proper study of the impact of pre-trial conferences, using matched
samples, conducted in 3,000 personal injury (i.e. civil) cases in New
Jersey,708 concluded that although they improved preparation, they did not
shorten trials. The researchers concluded that they therefore lowered rather
than raised the e¬ciency of the system by absorbing a great deal of court
and judge time without any compensating saving in the time required for
trials.709

Auld on pre-trial hearings
Lord Justice Auld was less convinced of the value of pre-trial hearings in crim-
inal cases than Lord Woolf was for civil cases. PDHs in the Crown Court he sug-
gested were mainly perfunctory: ˜taking the form of a report on progress, good
or bad, and the ¬xing of a trial date or the judge chivvying the parties into
getting on with basic matters of preparation and to resolving the issues that they
may or may not have discussed before then™.710 The lawyers were not paid ade-
quately for pre-trial work which as a result tended to be done by more junior
lawyers than those who would appear at the trial. The courts had no e¬ective
sanctions to make the parties prepare cases properly. There were also problems
in tailoring the timetabling of pre-trial hearings to the parties™ progress or lack
of it in preparing for trial. The time limits for holding PDHs were no doubt ˜a
reassuring target for the Court Service with its own targets and key performance
indicators in mind and for the Government with its commendable aim of
speeding the criminal justice process™,711 but for cases not needing such a
hearing it was ˜an unnecessary and expensive intrusion in getting the case to
trial™, while for cases needing a PDH ˜the timing is often too tight™. Often dis-
closure had not been completed so that by the time of the PDH the parties were
˜nowhere near identi¬cation of the issues or assessment of the evidential and
other requirements for trial, far less a realistic joint estimate of the likely length
of the case to enable the court to ¬x a ¬rm date for listing™. So further costly
PDHs might be needed. Or the parties might commit themselves to a trial date
for which they were not ready.
707
Fraud Trials Committee Report, HMSO, 1986, para. 6.52.
708
M. Rosenberg, The Pre-Trial Conference and E¬ective Justice (Columbia University Press,
1964) p. 68.
709
Civil cases are of course not the same as criminal, but if pre-trial conferences do not achieve
their intended results in civil cases, it is arguable that they are even less likely to work in
criminal cases where the adversarial nature of the proceedings is greater and the defendant is
understandably therefore even less inclined to be co-operative or helpful.
710 711
Auld, Ch. 10, para. 209, p. 483. Ibid, para. 212, p. 484.
353 Case management and pre-trial preparation


In magistrates™ courts, Auld suggested, the PTR ˜should perform the same
function as plea and directions hearings in the Crown Court, but usually fails
to do so . . . because of lack of targets, lack of enforceable sanctions for failure
to achieve them, lack of clarity about the aims of the hearing and local varia-
tions in practice™.712 Auld said that in the view of some judges and practitioners
pre-trial hearings were a useful means of getting the parties together to focus on
the matter of the plea and, in the event of a contest, the issues and the likely evi-
dence required. There was also the convenience to defence practitioners of
having defendants in custody brought from prison to court for a conference:
Frequently the last factor is the most important in the exercise. [For various
reasons] defence lawyers are often unable “ and sometimes unwilling “ to visit
and take instructions from clients in custody. In my view this is a major blot on
our system of criminal justice. It should be a fundamental entitlement of every
defendant, whether in custody or on bail, to meet at least one of his defence
lawyers in order to give him instructions and to receive advice at an early stage
of the preparation of his case for trial, and certainly before a pre-trial hearing.713
The problem to which Auld alluded is serious. According to defence barristers
in the Crown Court Study (section 2.6.1) there was no pre-trial conference with
counsel in 58“9 per cent of cases. This was more common when the defendant
ended by pleading guilty but, according to the defence barristers, there was no
pre-trial conference in 37 per cent of contested cases and according to defence
solicitors in 46 per cent. Whichever ¬gure was correct, the proportion was con-
siderable.
Auld suggested the problem could be addressed by promoting video links
both to enable remand prisoners to confer with their lawyers and for the holding
of court pre-trial remand hearings.714 The Government™s policy paper Criminal
Justice: The Way Ahead announced that every prison handling remand prison-
ers would have a video link to a magistrates™ court by March 2002.715 However,
this commitment extended only to magistrates™ courts. Auld urged that they
should be not only available for court hearings. ˜They should also be available
to enable representatives to speak to their clients and take instructions during
the course of the preparation of the case™.
Auld™s overall view was that:
Oral pre-trial hearings should become the exception rather than the rule. They
should take place only in cases which, because of their complexity or particular
di¬culty, require them. In the majority of cases they are unnecessary, expensive,
time-consuming and often, because of their timing and the failure of trial


712 713
Ibid, para. 206, p. 482. Ibid, para. 214, p. 485.
714
See, in particular, p. 502, para. 259 where Auld described experiments that had been
conducted and the encouraging results of evaluation. J. Plotniko¬ and R. Woolfson, Video
Link Pilot Evaluation (Home O¬ce, 1999) and Evaluation of Information Video Link Pilot
Project at Manchester Crown Court (Court Service and HM Prison Service, 2000).
715
Cm. 5074, 2001, p. 107.
354 Pre-trial criminal proceedings


advocates to attend, ine¬ective. Paradoxically . . . they also often serve to delay
rather than speed disposal of cases.716
Save for an initial preliminary hearing, pre-trial resort to the court, in Auld™s
view, should be ˜a last recourse™ used only when the case requires it.717 Auld™s
thesis was that:
In courts at all levels the main players “ the police, prosecutors and defence
lawyers “ should take the primary responsibility for moving the case on. They
should concentrate on improving the quality of the preparation for trial rather
than trying to compensate for its poor quality by indulging in a cumbrous and
expensive system of often unnecessary and counterproductive court hearings.718
The way to do that, he said, was ˜by adequate organising and resourcing of the
police, prosecutors, defence practitioners and the courts, including the provi-
sion of a common information system of information technology for all of
them and the Prison and Probation Services™ (ibid).
Whether these hopes are realistic is a di¬erent question.

Auld on ˜pre-trial assessment™
Auld suggested that in all Crown Court cases and as appropriate in the magis-
trates™ courts, ˜the court and the parties should set a provisional timetable by
reference to a suitably adapted standard checklist or case management ques-
tionnaire, including a date before which trial should start™ and that thereafter
˜the parties should liaise with each other, informally communicating progress
or lack of it, on key tasks to the court and any others involved™.719 Courts now
had case progression o¬cers whose function it was to remind the parties of
imminent deadlines. Such o¬cers could assume a wider role, not only chasing
progress, but also involving themselves in arrangements for listing and where
appropriate obtaining and transmitting written directions of the judge.720 In
the event of a failure of such liaison the case could be listed for a pre-trial
hearing.
The process, Auld said, should culminate in a ˜pre-trial assessment™ by the
parties and the court, with the parties ˜signifying in writing to each other and
the court their readiness or otherwise for trial and the court responding in
writing as appropriate™.721 Where outstanding matters could not be resolved by
written directions, there would be an oral pre-trial hearing. Wherever possible
the defendant in custody should be asked to consent to participating by video
link. The judge at such hearings should be able to make binding rulings on law,
evidence or procedure subject to variation at trial as justice might require. It was

716
Auld, Ch. 10, para. 218, p. 487.
717
Ibid, para. 219, p. 487. For the contrary view that, on balance, the PDH is worth preserving
for all Crown Court cases see the writer™s response to the Auld Report accessible on
www.lcd.gov.uk “ Major Reports, Comments at pp. 55“63.
718 719
Auld, Ch. 10, para. 220, p. 487. Ibid, para. 221, p. 488.
720 721
Ibid, para. 210, p. 484, para. 221, p. 488. Ibid, para. 224, p. 489.
355 Case management and pre-trial preparation


vital that trial advocates should attend any pre-trial hearing. All court orders
should be recorded (which was not the case at present) and immediately or
rapidly issued to the parties in writing. Ideally, it should be done electronically
“ though, Auld admitted, unfortunately the CREST computer system used in
the Crown Court did not have this basic facility.722
Auld™s ˜pre-trial assessment™ sounds much like what existed before which did
not work. The Runciman Commission said that in 1982 a working party under
the chairmanship of Lord Justice Watkins recommended a system of pre-trial
discussion between the parties based on the exchange of forms giving informa-
tion about the likely length of the case, the witnesses to be called, pleas and so
on, but an experiment set up to try out the scheme had produced disappoint-
ing results. The use of the forms was patchy. Similarly, in the Crown Court Study,
court clerks said that just under half (47 per cent) of the listing information
forms that were supposed to be sent in by the lawyers had not been received and
of those that were sent in, many were returned late.723


Sanctions as a management tool in criminal justice
Lord Justice Auld in his Review accepted that sanctions are mainly useless or
inappropriate in promoting good standards in pre-trial work in criminal cases:
Throughout the Review I have anxiously searched here and abroad for just and
e¬cient sanctions and incentives to encourage better preparation for trial. A
study of a number of recent and current reviews in other Commonwealth coun-
tries and in the USA shows that we are not alone in this search and that, as to
sanctions at any rate it is largely in vain. In a recent report, the Standing
Committee of Attorneys General in Australia commented: ˜. . . the primary aim
is to encourage co-operation with pre-trial procedures. There are inherent
practical and philosophical di¬culties associated with sanctions for non-co-
operation™.724
This conclusion stands in marked contrast to the views expressed in the Court
Service™s consultation paper Transforming the Crown Court issued under the
imprimatur of the Lord Chancellor in September 1999 and in the Report of the
National Audit O¬ce, Criminal Justice: Working Together published in
December 1999. The Court Service™s consultation paper repeatedly stated that
compliance with protocols and other case management performance standards
must be enforced by sanctions. These it suggested should include on-the-spot
¬nes or ¬xed ¬nancial penalties imposed by judges or by court sta¬ under judi-
cial direction. Financial penalties would apply to the police and other agencies.
Consistent failure to comply could lead to agencies™ budgets being capped. The
National Audit O¬ce Report equally urged that sanctions should play a central

722
Ibid, paras. 225“7, pp. 489“90.
723
M. Zander and P. Henderson, Crown Court Study (Royal Commission on Criminal Justice,
724
Research Study No. 19, 1993) section 2.2.8. Auld, Ch. 10, para. 231, pp. 491“2.
356 Pre-trial criminal proceedings


part in court management. It recommended that: ˜In taking forward its pro-
posals to change Crown Court procedures, the Court Service should ensure that
appropriate forms of sanctions are introduced to help manage robustly™
(p. 110). It identi¬ed the sanctions available to the courts as costs orders against
the lawyers, reprimand in open court, reprimand in the judge™s chambers, a
report to the head of chambers or, as the case may be, to the senior partner of
the ¬rm of solicitors, and reference to the practitioner™s professional body. The
same view was taken by the writer™s fellow Commissioners on the Runciman
Royal Commission. Sanctions, they thought, should include docking fees,
wasted costs orders, or a report to the head of chambers or to the leader of the
circuit.
There is, in other words, a powerful disposition to imagine that sanctions are
an answer to the fact that pre-trial process does not function according to the
rules. (The same philosophy informed Lord Woolf ™s Report on Access to Justice.)
Not that that they are frequently used. The National Audit O¬ce, which was so
enthusiastic about their use, said:
For sanctions to be e¬ective they need to be workable and appropriate. Magis-
trates and court sta¬ we spoke to criticised costs orders, which they considered
to be overly cumbersome since a lawyer™s right to make representations against
an order can prove time consuming and expensive. They are also felt to be inap-
propriately severe, since a single costs order can damage the reputation of an
advocate, leading to hostility rather than co-operation between local defence
solicitors and Crown Prosecution Service sta¬. Additional hearings may entail
expenditure greater than the award itself.725
In a paper entitled ˜What on Earth is Lord Justice Auld Supposed to Do?™, the
writer urged Sir Robin to reject this fashionable current philosophy. (˜It is time
that the belief in the value of sanctions in securing compliance with perfor-
mance targets in the context of the justice system is challenged. People on the
whole do their work as best they can according to their abilities, so far as cir-
cumstances permit. If in the mass of cases the system is not working as it is sup-
posed to do it is probably not the fault of those doing the work. Sometimes the
fault lies in the design of the system, but often there is no fault™.726) I expressed
the hope that, if Sir Robin were persuaded of this, ˜it would be very helpful if he
said so in plain terms™. He did precisely that and he set out the reasons.727 These
may be summarised as follows:
• An order for costs against the defendant is usually not an option because of his
lack of means and because he cannot be blamed for the faults of his lawyers.
• The fairness of the trial is threatened if the defendant is under threat of sanc-
tions if he or his lawyers misjudge the extent of their obligations to co-operate
with pre-trial procedures.

725 726
NAO, 1999 Report, p. 90, para. 4.67. Criminal Law Review, 2000, p. 419 at 429.
727
Auld, para. 230, p. 491.
357 Case management and pre-trial preparation


• Judges are reluctant to make costs orders against the prosecution involving a
transfer of funds from one public body to another.
• In attempting to make wasted costs orders it is di¬cult to identify who was at
fault “ on the prosecution side, counsel, those instructing him or the police;
on the defence side, counsel, his solicitor or the defendant. (There are of
course many other possible culprits “ quite apart from the possibility that no
one was at fault (ed.).) Wasted costs proceedings are an impracticable and
expensive way of achieving e¬cient preparation for trial.
• There are considerations of public interest, including the fairness of the trial,
in extending the court™s power to draw adverse inferences against a defaulting
party or in seeking to import from civil process the notion of ˜strike out™, for
example by depriving the defendant from advancing part of his case or by too
ready a use of the court™s power to stay a prosecution for abuse of process.
Despite his conclusion that ˜there is little scope for improving on existing sanc-
tions against the parties or their representatives for failure to prepare e¬ciently
for trial™,728 Auld suggested two exceptions. With regard to his proposal that the
parties shoulder primary responsibility for the task, having recourse to a pre-
trial hearing only when there are matters they cannot reasonably resolve
between them, he suggested that they should be penalised if they unnecessarily
asked for a pre-trial hearing. The penalty would be loss of the fee for the unnec-
essary hearing. That would be open to all the same objections that Sir Robin lev-
elled against wasted costs orders. The penalty would be used very rarely “ and
when used, would result in lengthy and costly debate and successful appeals. It
would also be likely to have the e¬ect of discouraging lawyers from asking for a
pre-trial hearing in cases where one was actually needed.
Secondly, he suggested, the Bar Council and the Law Society should ˜incor-
porate more stringent and detailed rules in their codes of conduct about prepa-
ration for trial™ and should issue clear guidance ˜as to the seriousness with which
the court will view professional failures in this respect™.729 The danger is that, if
implemented, this could be not only useless but counter-productive. The more
stringent and detailed the rules, the more they will not be complied with and to
say that the courts will regard failure to comply with the stringent and detailed
rules with ˜seriousness™ “ having just acknowledged that there are no workable
sanctions “ is to invite cynicism.


Case Preparation Project
On 30 June 2003, Lord Falconer, newly installed as Secretary of State for
Constitutional A¬airs and Lord Chancellor, spoke at the national launch of the
Case Preparation Project (CPP). The theme was ˜Delivering justice “ e¬ective
trial management™. CPP involves all the key players in the criminal justice


728 729
Auld, para. 232, p. 492. Auld, para. 234, p. 492.
358 Pre-trial criminal proceedings


system “ the police, CPS, judges and magistrates, court sta¬ and the defence.
There were six core proposals that would be tested by pilot studies in seven
areas:

• Clearer de¬nition of roles and responsibilities The responsibilities of the
defence, the prosecution and the police in preparing cases at each stage of the
case management process from the point of charge to disposal in the courts
to be laid down in national protocols with accompanying quality standards.
Responsibilities for the courts and the judiciary in supervising the process to
be clearly de¬ned.
• A new case progression function In each criminal justice area, each agency “ the
CPS, defence, police, magistrates and Crown Courts “ to nominate a person
or persons (case progression o¬cers) for progressing cases through the
system to the speci¬ed protocols and standards. This role to be adequately
resourced. The case progression o¬cers (including whoever has been nomi-
nated by the defence) to work together as a ˜virtual team™ to ensure that cases
are managed e¬ectively. Primary responsibility to be on the parties to ensure
timely and adequate case preparation. The case progression function in the
defence, CPS and police to ensure witness availability information is accurate
and up-to-date and fed to the courts for listing. The court-based case pro-
gression o¬cers to support the judiciary, identifying cases that require inter-
vention and working closely with the listing o¬ce to ensure that cases are
listed appropriately for trial based on accurate information. Judges and mag-
istrates to have an explicit responsibility for supervising case progression.
They would question the parties as to their conduct of the case and would
intervene where issues in dispute needed to be resolved, where cases were not
making appropriate progress and/or where the parties were not meeting the
required standards and responsibilities for case preparation. In the magis-
trates™ courts, specially trained legal advisers would have an enhanced role in
supporting the lay magistracy in managing cases consistently “ for instance
by conducting case progression hearings.
• Process changes in the courts.
• Magistrates™ courts Make the ¬rst hearing more e¬ective. Magistrates, with the
legal adviser, to conduct a robust review of the case, deal with allocation deci-
sions, take pleas, identify case needs, make directions and ¬x a realistic
timetable. Legal advisers to carry out pre-trial readiness checks/assessments
outside the courtroom. Case progression o¬cers to oversee progress and
compliance with directions and orders given by the court.
• Crown Courts The new more robust ¬rst hearing in the magistrates™ court
would mean that fewer cases sent to the Crown Court would require a pre-
liminary hearing in the Crown Court. There would be a ¬‚exible approach to
PDHs “ the judiciary, assisted by the court case progression o¬cer and the
parties, would decide whether an oral PDH was needed or whether an elec-
tronic or paper PDH was more e¬cient. The judiciary actively to inquire
359 Case management and pre-trial preparation


whether the parties had identi¬ed the issues, were preparing adequately for
trial and were complying with directions and the agreed timetable. Where
appropriate sanctions might be used to penalise poor performance. For
certain cases the parties to be required to prepare a case and issues summary
to clarify the issues to be decided by the jury. (Not part of the pilots as it prob-
ably required legislation.) The parties responsible to certify the court that they
were ready for trial in advance of the trial date.
• Listing To provide greater certainty, reduce the number of ine¬ective trials,
increase con¬dence and value for money. More ¬xed dates. Revised listing
practices to be built into a national framework.
• Interventions to support better case management The agencies would be given
consistent targets and performance measures “ for instance with regard to
ine¬ective trials and witness measures. Examples of interventions being con-
sidered included, for the agencies, warnings at the local level, warnings at the
national level, external inspections or audits; for the defence, audit by the
Legal Services Commission or formal inspection.
Local criminal justice boards to monitor and manage performance against
the new targets and to consider what interventions were needed to keep every-
one up to the mark. The Criminal Justice Joint Planning Unit to work on CPP
as part of its drive to improve delivery nationwide.
• Actions to ˜incentivise™ defendant behaviour The judiciary to apply appropriate
sanctions for hindering and obstructing the process “ for instance by deliber-
ately failing to attend hearings or keep appointments with lawyers.
Requirements of the defendant to be linked to conditions of bail. Sanctions
that could be applied could include ¬nancial penalties, a period in custody or
community service. Defence representatives to be responsible for informing
the court if the defendant persistently failed to attend meetings to take
instructions or if there was a likelihood that the trial might be jeopardised.
• Actions to ˜incentivise™ lawyers to case progression The solicitor™s and barrister™s
responsibilities for case preparation, case progression and their duty to the
court to be articulated in protocols and standards. Fee structures to be
adjusted to ensure that these responsibilities were appropriately and explicitly
remunerated. This might include front-loading of fees and e¬ciency pay-
ments where cases were brought and concluded expeditiously.
• Persistent failures by an individual practitioner or professional practice (pros-
ecution or defence) to ful¬l the case preparation protocols and to meet the
agreed standard subject to a range of possible interventions. For the prosecu-
tion this could include individual warnings, warnings at national level,
inspections or audits. For the defence this could include warnings from the
Legal Services Commission (LSC), mandatory audits by the LSC, withhold-
ing of fees, peer review and ultimately withdrawal of LSC contracts.

This was an ambitious and far-reaching project to which the Government was
committing serious resources. The headquarters unit alone had some ¬fty
360 Pre-trial criminal proceedings


persons. The pilots in seven areas were scheduled to take from summer 2003 to
summer 2004 with an evaluation over nine to twelve months.
Commenting on the launch the writer expressed reservations about the
project:

M. Zander, ˜Can the Criminal Justice System be Licked into Shape?™ New
Law Journal, 11 July 2003, p. 1049
Lord Falconer made clear that this programme of criminal justice reform was
˜an absolute priority of the Government™.
The overall plans involve all the relevant agencies and, remarkably, at least at
this stage, they seem to be on board. (Ken Macdonald QC, the new chair of the
Criminal Bar Association, for instance, pledged the full support of the CBA for
the reforms.) The project will be well resourced. There will be pilot studies and
external evaluation. The plans at this stage are ¬‚uid and will be adjusted in light
of experience.
Given all this constructive e¬ort aimed at laudable objectives it seems churl-
ish to raise serious doubts about the project. The doubts fall into four distinct
categories.
Even though the concerted reform e¬ort is greater than ever before, many of
the problems addressed may be too deep-seated to be solved. Experience with
one attempt at reform after another suggests that any system that requires the
parties to take responsibility for the proper and timely preparation of criminal
cases, for monitoring each other, for notifying the court of problems as neces-
sary, for completing forms, will fail in too a large proportion of cases to make
successful enforcement action a practical proposition. Frustration at failure will
tend to generate either resignation or more and more punitive sanctions “ with
little practical e¬ect.
Although signi¬cant resources are being put into the project, they will be
insu¬cient to test whether the new ideas are practicable. To take only the most
obvious example, it will be years before the court IT system is adequate to the
task. In the meanwhile the cost of providing su¬cient human resources to give
the system a chance of working as proposed will be prohibitive.
Worse, some of the proposed solutions to the problems will be counter-
productive. Wasted cost orders, for instance, as Lord Justice Auld recognised,
tend to generate cumbrous satellite proceedings. Paying lawyers more for pre-
trial work will put more money in their pockets, thus pushing up costs to the tax-
payer, but will probably not generate either savings or other bene¬ts elsewhere.
More fundamentally, to the extent that the reforms do work, the e¬ort and
expense required could be out of proportion to the attainable gains. Ironically,
in the very week of the CPP conference, both the Prime Minister and the Trade
and Industry Secretary, Patricia Hewitt, acknowledged that maybe the
Government had been wrong to devote so much energy to ˜delivery™ and per-
formance targets. As the Audit Commission recently said, targets and indicators
may ˜encourage counter-productive activity (for example allocating dispropor-
tionate resources to certain activities because they are being measured)™.730

730
Route to Justice, 2002.
361 Case management and pre-trial preparation


Lord Falconer said at the conference that his priority was to produce a
criminal justice system ˜which people trust and above all respect™. The extent of
people™s trust and respect for the system is based on a complex and shifting
bundle of factors. It seems improbable that it could be a¬ected much, if at all,
by the outcome of this initiative. The project will be worthwhile if evaluation
shows that it has achieved useful results proportionate to the costs and e¬ort
expended “ regardless of whether the general public knows or cares.
The CPP was carried forward in a variety of ways:
• In June 2004 the new Criminal Procedure Rules Committee met for the ¬rst
time. The Criminal Procedure Rules were promulgated in April 2005. As was
seen above (pp. 153“54), the Rules make it explicit that the judiciary are
responsible for case management “ notably at the PCMH which replaced the
PDH.
• The CPP became the E¬ective Trial Management programme established by
the DCA, the Attorney General and Home O¬ce.
• In July 2004 the Lord Chief Justice, the Attorney General, the Lord Chancellor
and Home O¬ce Minister Baroness Scotland issued the Criminal Cases
Management Framework (CCMF). A second edition was issued in July 2005
(www.cjs.online.gov.uk/framework). The CCMF (194 pages) provides oper-
ational practitioners with guidance on how cases could be managed more
e¬ciently from start to ¬nish. It describes case management procedures and
the roles and responsibilities of administrative sta¬ operating these proce-
dures and of the defence. It also sets out the expectations of the judiciary. It
includes references to new practices for charging (p. 248 below) and witness
management (˜No Witness, No Justice™)731 being delivered through the
Criminal Case Management Programme.
The CCMF is an impressive document. If everyone acted in accordance with its
prescriptions the system would be functioning beautifully.
One measure of e¬cient management of the system is the proportion of trials
that are ˜ine¬ective™ in the sense that they cannot go ahead because one or other
side is not ready. In 2003 the percentage of ine¬ective trials in magistrates™
courts was 29.4 per cent, in 2004 it was 26 per cent and in 2005 it was 21.7 per
cent.732 This trend is encouraging.
Another set of ¬gures relates to trials that ˜crack™ i.e. do not go ahead either
because the defendant pleads guilty or because the prosecution drops the case.
In each of the years 2003, 2004 and 2005 the proportion of trials that cracked
because of late pleas was 23 per cent. In the same years the proportion that
cracked because the prosecution dropped the case was 14.6 per cent, 14.2 per
cent and 13.5 per cent.733 The ¬gures for cracked trials therefore show little
improvement.

731
This project brings together the police and the CPS to meet the needs of victims and
732 733
witnesses. Judicial Statistics 2005 (Revised), Table 7.1. Ibid, Table 7.2.
362 Pre-trial criminal proceedings


Another set of ¬gures show the average length of hearings in the Crown
Court. In the years 2003, 2004 and 2005 the average length of not guilty plea
cases was 9.6, 9.5 and 9.8 hours. The average length of guilty plea hearings was
1.2, 1.2 and 1.3 hours. The average length of cases for sentence only was 0.6
hours in all three years.734 There was therefore no improvement in that respect.


15. Preparation of cases by the defence
A depressing picture of the way cases are (or at least were) prepared by defence
lawyers emerged from research conducted by Professor M. McConville and col-
leagues J. Hodgson, L. Bridges and A. Pavlovic, published as Standing Accused
(Clarendon Press, 1994). The study was the ¬rst to try to explain what defence
lawyers actually do. It was based on an examination of ¬les, attending police sta-
tions, sitting in on legal advice sessions in police stations, attending question-
ing of suspects by police o¬cers, interviews with clients, attending interviews
with clients in the solicitor™s o¬ce and at court and conferences with counsel.
Interviews were also conducted with the lawyers and their sta¬.
The main research was conducted over a three-year period starting in
October 1988. In that period the researchers observed the practices of twenty-
two ¬rms of solicitors in cities and towns in the South West, East Anglia, the
South, Central and North Midlands, the North West and the North East of
England. ˜The ¬rms were chosen for the most part because of their status as
mass deliverers of legal services in criminal cases in their localities™ (p. 15). In
some cases the researcher spent several months with the ¬rm. For most the
observation period lasted between four and eight researcher weeks. Shorter
periods were spent with ¬rms with smaller practices. The average time spent
with each ¬rm was six and a half researcher weeks. In addition to this main
sample, another twenty-six ¬rms and three independent agencies were target-
ted by police station advice and interrogation observation. The average period
spent observing this sample of ¬rms was about two weeks. In total therefore
there were forty-eight ¬rms in the study and the research covered 198 researcher
weeks of observation.
The research came to the following conclusions:
• Almost all those interviewed in the ¬rms ˜came to see criminal defence prac-
tices as geared, in co-operation with the other elements of the system, toward
the routine production of guilty pleas™ (p. 71). (˜In the process, any notions
they have carried with them into practice of criminal defence work being
based in an adversarial process and involving careful investigation and con-
struction of the individual™s case are disabused™ (ibid).)
• Many suspects in the police station do not appreciate the signi¬cance of
the right to free legal advice, some are dissuaded by the police and some are


734
Ibid, Table 6.21.
363 Preparation of cases by the defence


confronted by solicitors who do not want to attend the police station. Many
of those who do police station work are former police o¬cers. Non-solicitor
clerks generally cannot o¬er legal advice. ˜Advisers of all grades fall in with
police routines and are responsive to police expectations that the private
interview with the client will be over in a matter of minutes. Consultations are
hurried and produce only an outline of the client™s account su¬cient to enable
the adviser to slot the case into one of the “typical case” categories with which
advisers are familiar™ (p. 100).
Defence advisers present during interviews conducted by the police make few if
any objections to the way the interview is conducted:
Looked at as a whole, advisers who attend police stations accept uncritically the
propriety and legitimacy of police action, even where what they witness them-
selves, what they hear from clients, and what they suspect goes on, leaves them
convinced that the police break the rules and in other ways are beyond the law.
The reason for this is that many advisers, like the police, instinctively believe,
without requiring substantiation through evidence, that there is a case to answer,
and that it is the client who must give the answer. This in turn springs from a
working assumption that the client is probably factually guilty [pp. 126“7].
Defence advisers, most of whom are non-quali¬ed sta¬, are less concerned
with establishing the circumstances relating to the alleged o¬ence than with
securing from the client a promise to plead guilty. Their dealings with the
clients, based on personal relationships, operate on the principle that the client
has done something and should plead. Clerks do not assiduously test for the
existence of defences or satisfy themselves that all legal requirements of guilt are
met, nor do they have the skills to undertake such an inquiry . . . Many solici-
tors are court-based, keep a distance from clients and delegate all tasks short of
advocacy to non-quali¬ed sta¬ on an ungraded and unsupervised basis [p. 159].
Legally aided clients are not generally encouraged to tell their stories. In so far
as their version emerges they are taught that it is not worth recording, that it
will not persuade any court and should be abandoned in the face of police evi-
dence. Statements of clients are routinely disregarded. The adviser persuades
the client that his case is not worth pursuing. Those that survive to trial do so
despite, not because of, the process. ˜Conviction is achieved in the o¬ce of their
own adviser through a process whose methodologies most nearly resemble
those of the police themselves™ (p. 160).
Plea settlement and pleas in mitigation are dealt with in a routine manner.
Magistrates™ courts are seen by solicitors as places where clients can be processed
through guilty pleas. Defence solicitors fail to see their own central role in the
production of guilty pleas:
In magistrates™ courts, the principal strength of prosecution cases lies in their
heavy reliance upon evidence from the police. Such evidence assumes legitimacy
because it is practiced, assertive and depersonalised. Supported by notebook
entries and the testimony of fellow o¬cers, the self-legitimating and mutually
supporting character of police evidence commends itself to magistrates . . .
364 Pre-trial criminal proceedings


Against this there is often no separate, competing case for the defence. The general
lack of investigation and preparation by solicitors and their sta¬, throws the
burden of the defence onto the defendant [p. 237].
So far as conviction or acquittal is concerned, any success defence solicitors
have at trials themselves tends to be a product of what they can achieve ˜on their
feet™ in court and whatever ˜turns up™ on the day [p. 238].
For Crown Court cases a few ¬rms were exceptional in employing competent
and experienced sta¬:
Here the case was prepared well in advance and a real e¬ort made to engage in
proactive defence work. Witnesses were sought and pursued until contacted;
enquiry agents were sent to draw up plans of the scene of the crime; and foren-
sic experts were employed in response to the client™s assertion of inaccurate or
fabricated evidence. However, these individuals were quite exceptional, even
within the ¬rms in which they were employed. In the majority of practices much
preparatory work is undertaken by non-quali¬ed sta¬, and solicitors themselves
have little contact with routine Crown Court cases . . . In an unacceptably high
number of cases, evidence is still being gathered long after the time when it was
¬rst available, sometimes during the trial itself . . . The role de¬nition applied
to sta¬ leads solicitors to employ junior, casual or part-time individuals who are
not otherwise involved in the case at all. The fact that the rates of remuneration
are so low shows that it is not just solicitors who undervalue these tasks but the
state itself . . . With occasional outstanding exceptions, the average solicitor has
little involvement in preparing these cases, and what work is done is often too
little and too late [pp. 267“8].
A few barristers were strongly committed to cases and were careful to test the
underlying basis of a guilty plea, but most barristers were not:
Strikingly on the hearing day at court, but also in conferences in chambers, bar-
risters evince little interest in scrutinising the evidence or in attempting to con-
vince the defendant of its weight and probative value. Rather, conferences are
treated as ˜disclosure interviews™, the purpose of which is to extract a plea of
guilty from the client. In this process, what the prosecution alleges, what wit-
nesses may say, and what the client wishes to say, are not discussed . . . In place
of evidence, a whole gamut of persuasive tactics is deployed against clients
enabling barristers to take control of cases and to prevent most clients from
becoming, in any real sense, defendants [pp. 268“9].
For a di¬erent picture given by the actual participants in the process see the
Crown Court Study.735 This con¬rmed that a high proportion of briefs are
received by the barrister in the case at the last minute “ 40 per cent of prose-
cution barristers and 25 per cent of defence barristers got the brief in contested
cases after 4pm of the day before the trial (p. 30). 59 per cent of prosecution
barristers and 44 per cent of defence barristers said it was a returned brief

735
M. Zander and P. Henderson, Crown Court Study (Royal Commission on Criminal Justice,
Research Study No. 19, 1993).
365 Delays in criminal cases


(p. 32). A quarter of all barristers said the brief was not adequate (p. 33), but
despite this almost all the barristers thought they had enough time to prepare
the case (pp. 30“1) and 71 per cent of prosecution barristers and 83 per cent of
defence barristers said they had been able to rectify inadequacies in the brief
(p. 33).
The judges were asked whether counsel was well-prepared. Nearly half the
judges (47 per cent) thought the prosecution counsel was ˜very well prepared™
and the same proportion thought counsel was ˜adequately prepared™. Only 6 per
cent thought counsel was ˜not well prepared™ (p. 47). The judicial assessment of
defence counsel was precisely the same (pp. 59“60).


16. Delays in criminal cases
Another measure of e¬ciency in the system is the extent of delays. Delay is
a¬ected by whether the defendant pleads guilty or not guilty and whether he is
on bail or in custody.
In the years 2003, 2004 and 2005 the average waiting time from committal
for defendants pleading not guilty in the Crown Court was 20.3, 20.9 and 21.3
weeks. In the same years the average waiting time for those pleading guilty was
12.0, 12.4 and 12.0 weeks.736
In the same years the average waiting time for defendants on bail was 15.7,
16.2 and 15.9 weeks and for defendants in custody was 13.5, 14.0 and 14.0
weeks.737
In the magistrates™ courts the delays are of course less. In the years 2003, 2004
and 2005 the average time from ¬rst court listing to completion in all criminal
cases was thirty-two, thirty-three and thirty-one days.738
In either-way cases dealt with in the magistrates™ courts the average time from
¬rst listing to completion in those years was ¬fty-six, ¬fty-¬ve and ¬fty-four
days.739
The picture is mixed but overall there cannot be celebration about any strong
trend in the direction of improvements.740
For a perceptive analysis of the reasons for delays in the criminal justice
system see I. Kelcey, ˜Delays, the Truth, the Whole Truth and Nothing but the
Truth™, 152 New Law Journal, 15 November 2002, p. 1726.

736 737 738 739
Judicial Statistics, Table 6.18. Ibid. Ibid, Table 7.4. Ibid, Table 7.3.
740
Tables 6.16 and 6.17 of the annual Judicial Statistics show the percentage of Crown Court
cases dealt with in under eight weeks and under sixteen weeks from committal according to
plea and according to bail/custody status. Again the picture is mixed but there is no indication
of marked improvement. Indeed compared with the ¬gures for 2001 and 2002 the picture is
clearly worse. Thus the proportion of defendants in custody dealt with in under eight weeks
in the years 2001“5 was 49.5 per cent, 41.9 per cent, 38.6 per cent, 36.6 per cent and 37.1 per
cent. The proportion dealt with in under sixteen weeks in those ¬ve years was 78.4 per cent,
72.0 per cent, 69.4 per cent, 67.6 per cent and 69.0 per cent. In both sets of ¬gures there is a
consistent year on year deterioration from 2001“4 and the 2005 ¬gures are signi¬cantly worse
than for 2001.
366 Pre-trial criminal proceedings


Time limits
Overall time limits
In Scotland there is a rule that a jury trial must commence within 110 days of
committal if the accused is in custody (subject to the court™s power to grant an
extension) and within one year if he is on bail. If either deadline is passed the
prosecution is stayed. The only equivalent in the English system is the rule that
summary o¬ences in the magistrates™ courts must be started within six months
of the alleged o¬ence.741
Lord Justice Auld in his report addressed himself to the question whether the
English system should adopt the Scottish approach. He was clear that it should
not. The Scottish experience was not encouraging:
The availability of these time limits does not, in general, contribute to the aim of
e¬cient and speedy preparation for trial. To comply with them procurators
¬scal742 frequently have to list cases for trial even when they are not, or may not
be, ready and then seek repeated adjournments while the parties continue to
prepare for trial. Not only does such necessity defeat the purpose of the time
limits, but it also causes much waste of time and other inconvenience to defen-
dants, witnesses, victims and all others involved in the process. In Canada a deci-
sion of the Supreme Court743 interpreting the constitutional right of defendants
charged with serious o¬ences to trial within a reasonable time, led to so many
motions to stay, that the prosecution dropped thousands of cases awaiting trial.
The resultant public outcry contributed eventually to the legislature reclassifying
a broad range of o¬ences so as to take them outside that relatively loose time bar.
Similar experiences in other jurisdictions suggest that the Secretary of State
has been well advised in not introducing overall time limits here. Compliance
with arbitrary and rigid time limits is likely to give only an illusion of speedy
preparation for trial, hiding the reality of injustice in substantive and procedural
compromises that they may impose on the criminal justice process. At their
worst, they may prevent conviction of the guilty while doing little to speed the
trial of both guilty and innocent. Neither is conducive to public con¬dence in
the system.744

Custody time limits
Custody time limits have been part of the English system since the mid-1980s.745
When a time limit is exceeded the result is not, as in Scotland, that the case is
stayed but rather that the defendant has to be released on bail “ subject to the
limitations on the right to bail imposed by s. 25 of the Criminal Justice and

741 742
Magistrates™ Courts Act 1980, s. 127. The Scottish equivalent of the CPS.
743
R v. Askov (1990) 79 CR (3rd) 273, 56 CCC (3rd) 449 (SCC).
744
Auld, Ch. 10, paras. 263“4, p. 504.
745
The Prosecution of O¬enders Act 1985, s. 2 empowered the Secretary of State to set time
limits for the preliminary stages of criminal proceedings by regulations. The time limits are
speci¬ed in the Prosecution of O¬ences (Custody Time Limits) Regulations 1987 and the
(Amendment) Regulations 1999.
367 Delays in criminal cases


Public Order Act 1994 (p. 278 above). The expiry of a custody time limit could
amount to ˜exceptional circumstances™ within the meaning of s. 25 so as to
justify a grant of bail.
In summary-only or either-way cases, the maximum custody period from
¬rst appearance to summary trial is ¬fty-six days. For either-way cases, the limit
to trial or committal is seventy days. For indictable-only o¬ences, the limit is
seventy days before committal and 112 days from committal. If the case is ˜sent™
under s. 51 of the Crime and Disorder Act 1998 or now under Sch. 3 of the
Criminal Justice Act 2003, the limit is 112 days including time spent in custody
at the instance of the magistrates™ court or 112 days whichever is the longer.
Each charge has its own time limit. In R (Wardle) v. Leeds Crown Court746 W
was charged with murder. On the day the time limit expired the prosecution
o¬ered no evidence on that charge but laid a new charge of manslaughter. The
House of Lords held that a new seventy-day time limit began on that day, but
the prosecution had to show that the new charge had not been brought solely
(Lord Hope and Lord Clyde) or primarily (Lord Slynn) to obtain a fresh custody
time limit.747

Extension of custody time limits748
A court may extend the custody time limit if it is satis¬ed that the need for it is
due to ˜some . . . good and su¬cient cause™ and ˜that the prosecution has acted
with all due diligence and expedition™.749 The concepts are separate and have
separate meanings. They have generated a great deal of case law.750
In R v. Governor of Winchester Prison, ex p Roddie751 the prosecution asked for
an extension of time because of delays in getting the papers ready due to the
police being drastically understa¬ed. The Divisional Court held that neither the
seriousness of the o¬ence, nor the fact that the extension was for a short period,
nor that the police were understa¬ed constituted good and su¬cient grounds for
an extension of time. Once the time limit had expired there was no discretion to
extend it. The accused was held unlawfully for six weeks until the date of his
committal. (A person being held unlawfully because of a breach of the custody
time limits rules can apply for release on bail or by way of habeas corpus, but he
cannot obtain damages as the time limit rules do not create a right of action.752)
However, in R (on the application of Gibson) v. Winchester Crown Court753
the Divisional Court held that an extension could be granted even though the

746
[2001] UKHL 12, [2001] Crim LR 468 and commentary at 469.
747
Note the powerful dissents by Lords Scott and Nicholls “ who said respectively that the
majority view was ˜absurd™ and ˜simply nonsense™.
748
See N. Corrie and D. Wolchover, Bail in Criminal Proceedings (2004, Oxford) pp. 476“87.
749
Prosecution of O¬ences Act 1985, s. 22(3) as amended. Prior to the amendments introduced
by the Crime and Disorder Act 1998, s. 43 the requirement was only ˜all due expedition™.
750
For a helpful brief overview see A. Samuels, ˜Application for an Extension of the Custody
751
Time Limit™, 168 Justice of the Peace, 26 June 2004, pp. 494“6. [1991] 2 All ER 931.
752
Olotu [1997] 1 WLR 328, [1997] 1 All ER 385.
753
[2004] EWHC 361, QBD, [2004] Crim LR 839 and commentary at 840.
368 Pre-trial criminal proceedings


prosecution had not acted with all due diligence where that was not the cause
of delay. The cause there was lack of available courtrooms.
In November 1998, the Lord Chief Justice, giving judgment in ¬ve appeals in
the Divisional Court, said that the exercise of the discretion to grant an extension
was for the judge, taking into account all the relevant factors. It was neither pos-
sible nor desirable to try to de¬ne what may or may not amount to good and
su¬cient cause for granting an extension. The Divisional Court would be reluc-
tant to interfere with the judge™s decision,754 but the court said that custody
periods should be as short as possible and that the prosecution must prepare cases
with all due diligence and expedition. The parties were not permitted to enter
consent orders. Great caution should be exercised over a request for an extension
by the prosecution based on a shortage of judges or courtrooms. If a case was not
remarkable it could be tried by any judge of the appropriate status. Di¬culties in
listing cases would normally not be a ground for granting an extension of time.
An application for an extension has to be made before the time limit expires
after two days™ notice has been given.755 This has given rise to considerable
di¬culties. In R v. She¬eld Justices, ex p Turner756 the accused was charged with
murder. Both the CPS and the defendant™s solicitor miscalculated the time limit
and thought it ended on 23 August when in fact it ended the previous day. The
application for an extension of the time limit which was granted on 23 August
was therefore technically too late. The Divisional Court ruled that the accused
was held unlawfully from 23 August until his committal on 20 September, but
that from 20 September he was again held lawfully because on that date he had
been committed for trial. The fact that the time limit had expired on 22 August
did not invalidate the committal on 20 September.
Auld recommended amendment of s. 22 of the Prosecution of O¬enders Act
1985 to enable a court to consider and grant an extension of the custody time
limit after it has expired “ providing that it is narrowly drawn, including a pro-
vision that the court must be satis¬ed that there is a compelling public interest.
Also he recommended that there should be a right of appeal against a refusal of
an extension.757


Stay of prosecution because of delay
If delay in bringing the prosecution is excessive the case may be stopped
(˜stayed™) as an abuse of the process of the court, but the courts are extremely
reluctant to entertain such an application.758 In Symons 759 in March 2006 the
754
R v. Crown Court at Manchester, ex p McDonald (1999) 1 Cr App Rep 409, [1999] 1 All ER 805.
755
In R v. Governor of Canterbury Prison, ex p Craig [1990] 2 All ER 654 the Divisional Court
held that the notice requirements are directory not mandatory and the court can give an
extension if satis¬ed that there is a good and su¬cient reason to do so.
756 757
[1991] 1 All ER 858. Auld, Ch. 10, paras. 267“70, pp. 505“7.
758
See A-G™s Reference (No 1 of 1990) [1992] QB 630 at 644; Hooper [2003] EWCA Crim 2427 at
[76]; B [2003] 2 Cr App R 197 at [15]“[18]; Smolinski [2004] 2 Cr App R 661 at [7].
759
[2006] EWCA Crim 756; [2006] 2 Cr. App. Rep. 23.
369 Delays in criminal cases


Divisional Court stated the principles that should be followed: a permanent stay
should be exceptional even where delay was unjusti¬able, a stay would very
rarely be granted where there was no fault on the part of the complainant or the
prosecution, no stay should be granted unless the defence was so seriously prej-
udiced that a fair trial would not be possible and in considering the question of
prejudice the court should have regard to its power to regulate the admissibil-
ity of evidence. If a fair trial was possible, a stay should not be granted. (In that
case S was sentenced to seven years™ imprisonment for the rape and indecent
assault of his own sisters in the 1970s. The trial judge had allowed the case to go
forward. The Court of Appeal held the conviction was not unsafe.)
In Darmalingum v. Mauritius760 the Judicial Committee of the Privy Council
allowed an appeal on the ground of undue delay where M™s conviction for
forgery had been dismissed twelve and a half years after his arrest. The
Constitution of Mauritius guaranteed the right to a fair hearing within a rea-
sonable time. Lord Steyn said: ˜Even if his guilt is manifest, this factor cannot
justify or excuse a breach of the guarantee of disposal within a reasonable time™.
The reasonable time requirement was a separate guarantee. It was not necessary
to establish that the appellant™s case had been prejudiced by the delay.
However, within four months, in Flowers v. Jamaica761a di¬erently constituted
Judicial Committee interpreting an identical provision in the Constitution of
Jamaica, came to a di¬erent conclusion “ the right to trial within a reasonable
time was not a separate guarantee but rather part of an overall provision. In
order to succeed the appellant had to establish, inter alia, prejudice arising from
the delay.
The question was considered again in light of Article 6(1) of the ECHR by
nine law lords in Attorney General™s Reference No 2 of 2001.762 The Court of
Appeal had taken the same approach as that of the Judicial Committee in
Flowers.763 The House of Lords, by seven to two,764 upheld the Court of Appeal™s
decision. Criminal proceedings could be stayed on the ground of delay only if a
fair hearing was no longer possible or it was for any other compelling reason
unfair to try the defendant. Article 6(1) guaranteed a hearing with certain char-
acteristics. It would be anomalous if breach of the reasonable time requirement
had a more far-reaching e¬ect than a breach of other Article 6(1) rights. There
were various possible remedies for the breach. If it was established before the
trial, action could be taken to expedite the trial. The defendant might be

760 761
[2000] 1 WLR 2303. [2000] 1 WLR 2396.
762
A-G™s Reference (No 2 of 2001) [2003] UKHL 68, [2004] 1 All ER 1049.
763
[2001] 1 WLR 1869. For sharp criticism of the decision see A. Webster QC, ˜Delay and Article
6(1)™, Criminal Law Review, 2001, pp. 786“93.
764
A critical review of the decision commented: ˜it is not perhaps surprising that the two
dissenting judges came from Scotland where a strict view has long been taken toward the
prevention of delay through the imposition of time limits™ “ J. Jackson and J. Johnstone, ˜The
Reasonable Time Requirement: an Independent and Meaningful Right?™, Criminal Law
Review, 2005, pp. 3“23 at 4. Lord Hope in his judgment at [62] said that the Scottish 110-day
rule had existed for more than three centuries.
370 Pre-trial criminal proceedings


released on bail. If it was established after the hearing, there could be an apology,
a reduction in sentence or the payment of compensation. It would only be right
to quash the conviction if the hearing had been unfair or it had been unfair to
try the defendant at all.765


17. Publicity and contempt of court
It is a principle of fundamental importance both at common law and under the
European Convention on Human Rights that the trial of an accused person
should not be prejudiced by inappropriate pre-trial publicity or by publication
of prejudicial material during the trial itself. Traditionally, English law control-
ling the media with regard to publication of pre-trial material has been strict;
in practice in recent years it has become far less so.
There are two main di¬erent kinds of approach to the problem “ to prohibit
certain kinds of publication and to penalise breaches by proceedings for con-
tempt of court or, alternatively, to grant a stay or to quash proceedings in the
case which is the subject of the publicity. Until very recently almost all English
law has been of the former kind, but in recent years there has emerged also the
question whether proceedings should be stayed in advance or be annulled ret-
rospectively because of excessive media publicity.766
Under the Contempt of Court Act 1981 it is unlawful to publish anything
which ˜creates a substantial risk that the course of justice in the proceedings
will be seriously impeded or prejudiced™ (s. 2(2)). The rule takes e¬ect from
the moment when proceedings are ˜active™, which in criminal cases is from the
moment of arrest without a warrant or from the issue of a warrant or from
the charging of a suspect.767


Publicity before criminal proceedings are active
Publication of prejudicial material at a point in time where there is as yet no
suspect would therefore not fall foul of the statutory rule, though it could be the
common law contempt of intending to prejudice potential criminal proceed-
ings. This was held to apply to The Sun newspaper in 1988 when it delayed
laying information before magistrates for a private prosecution it was funding
until after it had published its story about a doctor allegedly raping an eight-
year-old girl. The sub judice period did not begin until the information was laid
so that the 1981 Act had not been breached, but after the doctor had been

765
For analysis and criticism of the decision see Jackson and Johnstone, n. 764 above. See also J.
Jackson, J. Johnstone and J. Shapland, ˜Delay, Human Rights and the Need for Statutory Time
Limits in Youth Cases™, Criminal Law Review, 2003, pp. 510“13.
766
For a general review of developments up to the mid-1990s see D. Corker and M. Levi, ˜Pre-
trial Publicity and its Treatment in the English Courts™, Criminal Law Review, 1996,
pp. 622“32. For research evidence that pre-trial publicity seems to have little or no impact on
767
jurors see pp. 376“77 below. Contempt of Court Act 1981, Sch. 1, paras. 3“5.
371 Publicity and contempt of court


acquitted, the paper was held to have committed a common law contempt by
proclaiming the doctor™s guilt. A ¬ne of £75,000 was imposed.768 By contrast,
The Daily Sport published the previous convictions of a man the police sus-
pected of kidnapping a girl after the police asked the media not to publish
the information. No warrant had yet been issued for the arrest of the man. The
editor said that he got the message about the police request not to publish
the information too late. The court held that there would not be liability for
common law contempt unless there was overwhelming evidence of intent to
prejudice the proceedings. The court criticised the paper but did not ¬nd such
intent.769 The decision was somewhat surprising as the paper knew that the
man was likely to be arrested and obviously appreciated that publication of his
previous convictions would be highly prejudicial.


Publicity when criminal proceedings are active
Once criminal proceedings are ˜active™ the media publish prejudicial material at
their peril. They are liable for contempt even though it cannot be proved that
they intended to prejudice a fair trial. There is an exception, however, if they can
show that they did not know and had no reason to know that criminal pro-
ceedings were active (s. 3(1)). It is also a defence if it can be established that pub-
lication was part of a discussion of public a¬airs or matters of public interest if
the risk of prejudice to the proceedings is incidental to the discussion (s. 5).


Proceedings to enforce the law
In recent years the standard of compliance with the spirit of the law of contempt
in criminal cases has slipped considerably. The media now frequently publish
material in the early stages of a case which in former times would have resulted
in severe penalties on editors. In the sensational case of the ˜Yorkshire Ripper™
most of the press published quotes from the police on the day of the arrest of
the suspect, Peter Sutcli¬e, indicating that the police were jubilant at having
caught the man they were hunting. It was clear that the search for the Ripper
was over. One or two papers even published photographs of him in spite of the
fact that there might well have been issues of identi¬cation evidence. The
Attorney General happened to be out of the country at the time. The Solicitor
General merely issued a letter to editors reminding them of the law of contempt,
but no proceedings followed.
Another huge wave of media publicity followed the arrest of Michael Fagan
in 1982 after he had been found in the Queen™s bedroom at Buckingham Palace.
This time proceedings were brought against several newspapers for publishing
material about Fagan that showed him to be feckless, that he had been a ˜junkie™

768
A-G v. News Group Newspapers Plc [1988] 2 All ER 906.
769
A-G v. Sport Newspapers Ltd [1992] 1 All ER 503.
372 Pre-trial criminal proceedings


and had marriage problems and that other criminal proceedings were pending
against him. As The Times said (12 February 1983): ˜It was fortissimo and it was
as lurid as the pettiness of the material permitted. Any idea that while a man has
a criminal charge outstanding against him his character is in baulk770 was
thrown to the wind™, but, to general surprise, the Divisional Court, with the
Lord Chief Justice presiding, rejected all but one of the charges against the
papers. It therefore set a lower standard of conduct for the press than would
have been thought right before.771
In 1994, the Court of Appeal quashed the conviction for murder of two
sisters, Michelle and Lisa Taylor, because of prejudicial pre-trial publicity and
material irregularities at the trial.772 The Court of Appeal referred the case to the
Attorney General and asked him to consider bringing proceedings for contempt
against the newspapers concerned, but the Solicitor General declined to do
so. The two sisters were given leave to bring proceedings for judicial review
against the Attorney General™s failure to take proceedings against the newspa-
pers, but the Divisional Court dismissed the proceedings on the ground that,
even though some of the newspaper reports crossed the acceptable limits of fair
and accurate reporting, the Attorney General™s discretion not to act could not
be reviewed by the courts.773
In 1995, the trial judge refused to stay the proceedings against the Maxwell
brothers, Kevin and Ian (sons of Robert Maxwell), who had been the subject of
a great deal of adverse pre-trial publicity before their trial for fraud. In the event,
the jury acquitted the defendants. Mr Justice Phillips (now Lord Chief Justice)
spoke of the way in which, especially in a long case, all the participants in the
case are dominated by the experience:
It is something that it is impossible to exaggerate. As the weeks go by the trial
becomes not merely part of life, but the dominant feature of it so that the stage is
reached when one can hardly see behind or beyond it, and I am quite sure that
this is true of all who are involved in the trial. The responsibility of reaching ver-
dicts is a heavy one in any case, but in a case such as this it is one of which the jury
will be particularly aware. I do not believe that their verdicts will be in¬‚uenced by
anything they may have read about individual defendants before the trial begins.
In October 1995, a trial judge did stop the trial of Geo¬ Knights, partner of
EastEnders star Gillian Taylforth, because of what the judge called ˜unlawful
reporting and scandalous reporting™. (Knights was charged on 17 April 1995.
On the following day the Daily Mail and Today published interviews with wit-
nesses, the Daily Star said he ˜had gone berserk with an iron bar after catching
Miss Taylforth with another man™ and a few days later the Daily Mail published


770
For the uninitiated, a billiards term meaning ˜out of play™ (ed.).
771
A-G v. Times Newspapers (1983) Times, 12 February.
772
R v. Taylor and Taylor (1993) 98 Cr App Rep 361.
773
For comment see B. Naylor, ˜Fair Trial and Free Press: Legal Responses to Media Reports of
Criminal Trials™, 53 Cambridge Law Journal, 1994, pp. 492“501.
373 Publicity and contempt of court


a lengthy interview with a potential witness along with an account of Knights™
previous convictions.774) The case was said to be the ¬rst where the trial was
abandoned before it started, simply because of pre-trial publicity.775
The Attorney General brought proceedings against various newspapers for
contempt of court arising out of the case of Geo¬ Knights. He did not succeed.
The Divisional Court held that the saturation media coverage given over previ-
ous years to the relationship between Geo¬ Knights and Gillian Taylforth,
including his violent behaviour on previous occasions and his previous convic-
tions, had continued until a month before the incident in 1995 which led to the
abortive proceedings. It could not be said that any of the publications in
April/May 1995 had created a greater risk of prejudice than that which had
already been created.776
In 1996, the Court of Appeal upheld the conviction of Rosemary West who
with her husband Fred West had been charged with multiple horri¬c murders.
After his suicide, she was eventually convicted of ten murders. There had been
massive pre-trial press coverage. The question, the Court of Appeal said, was
whether it was possible to have a fair trial after such intensive, unfavourable
publicity. Lord Chief Justice Taylor said: ˜To hold otherwise would mean that if
allegations are su¬ciently horrendous so as inevitably to shock the nation, the
accused cannot be tried. That would be absurd™. The jury had been adequately
directed that they must act only on the evidence given in court.777
In A-G v. Birmingham Post and Mail Ltd778 the Attorney General did succeed
in contempt of court proceedings in respect of an article suggesting that a murder
which was then the subject of a trial had been carried out by members of a noto-
rious gang. The article had not identi¬ed any of the defendants but the judge had
stopped the trial and it started again with a di¬erent jury in a di¬erent town and
ended with convictions. A ¬ne of £20,000 was imposed on the newspaper.779
In April 2001, the trial judge stopped the trial on charges of a¬ray of two
famous Leeds United footballers, Lee Bowyer and Jonathan Woodgate, after he
found that an article in the Sunday Mirror had been ˜seriously prejudicial™. The
article, which framed the case as racially motivated, was published shortly
before the end of a long trial. The wasted costs were estimated to be in the region
of £8 million. A ten-week retrial ended that December with the acquittal of
Bowyer and the conviction of Woodgate on a minor charge.780 The newspaper

774
See national newspapers on 5 October 1995 and E. Crowther, ˜Publish and Then be Damned™,
Justice of the Peace, 13 January 1996, p. 26.
775
In October 1995, the Attorney General said that at least ¬ve trials, including that of Knights,
had been halted in the previous three years because the trial judge decided that media
coverage would make a fair trial impossible (House of Commons, Hansard, 26 October 1995,
776
vol. 264, cols. 797“807). A-G v. MGN Ltd [1997] 1 All ER 456.
777 778
West [1996] 2 Cr App Rep 374. [1998] 4 All ER 49.
779
See also Andrews (Tracey) [1999] Crim LR 156.
780
The publicity over the case was the subject of research published in T.M. Honess, S. Barker,
E.A. Charman and M. Levi, ˜Empirical and Legal Perspectives on the Impact of Pre-trial
Publicity™, Criminal Law Review, 2002, pp. 719“27.
374 Pre-trial criminal proceedings


was ¬ned £75,000 for contempt. It was this case that prompted the Government
to include in the Courts Act 2003 a provision permitting a court to make ˜a third
party costs order™ where ˜there has been serious misconduct (whether or not
constituting a contempt of court) and the court considers it appropriate, having
regard to that misconduct™ to make such an order.781


Reporting of committal and transfer proceedings
Until 1967, committal proceedings provided much lurid material for the press
which was lawful since it amounted to reporting of court proceedings, but it was
often said that such reporting prejudiced the prospects of a fair trial since the
jury might remember what they had read and be a¬ected by it. This was the
more so since the normal practice was for the prosecution to present its case at
the committal stage but for the defendant to refrain from revealing his defence.
The press accounts of the case would therefore inevitably be very one-sided.
The matter came to a head after the trial of Dr Bodkin Adams in 1957 for the
murder of one of his elderly patients. The prosecution at the committal pro-
ceedings led evidence of the circumstances in which two other patients had died
but this was not introduced at the trial. The massive newspaper coverage of the
case from the arrest of the doctor to his ultimate acquittal gave the impression
that he had been guilty of several murders. As a result of the case, in June 1957,
a departmental committee under the chairmanship of Lord Tucker was
appointed to consider whether there should be restrictions on reports of com-
mittal proceedings.
The report of the committee782 recommended that restrictions should be
imposed and these recommendations were eventually enacted in the Criminal
Justice Act 1967, s. 3 (and later s. 8 of the Magistrates™ Court Act 1980), which
made press reporting of the evidence at committal proceedings unlawful save
where asked for by the defence. The press could only publish the formal basic
facts and not the evidence (s. 8(4)): the identity of the court, the names,
addresses and occupations of the parties and witnesses and the ages of the
accused and witnesses, the o¬ence or o¬ences, or a summary of them, with
which the accused was charged, any decision of the court to commit the accused
for trial and the charges.
The restrictions regarding reporting of committal proceedings were applied
to proceedings in the magistrates™ court for transferring or sending cases to the
Crown Court ¬rst, under the Criminal Justice Act 1987 for the transfer of fraud
cases, then under s. 51 of the Crime and Disorder Act 1998 in respect of the
sending of indictable-only cases and most recently under the Criminal Justice
Act 2003 for the sending of either-way cases.783

781
Section 93 inserting a new s. 19B into the Prosecution of O¬ences Act 1985.
782
Proceedings Before Examining Magistrates, 1958, Cmnd. 479.
783
See Sch. 3, para. 19 inserting a new s. 52A into the 1998 Act.
375 Publicity and contempt of court


Publicity at the time of the trial prejudicing a retrial
In October 1998, Michael Stone was convicted of the savage killing of Lin
Russell and her daughter Megan and of the attempted murder of her other
daughter Josie. The case received a vast amount of media coverage. In February
2001, his conviction was quashed by the Court of Appeal on the ground of the
unreliability of fellow prisoner prosecution witnesses. The court ordered a
retrial. The defence argued that because of the publicity it would be impossible
to have a fair retrial. The Court of Appeal rejected the argument. The court was
not satis¬ed on the balance of probabilities that the publicity, three years on,
was such as to make a retrial oppressive or unfair or make a verdict in a retrial
unsafe.784 (At the retrial, Stone was reconvicted.)


Power to order postponement of reports
The Contempt of Court Act 1981, s. 4(1) states that a person is not guilty of con-
tempt of court under the strict liability rule in respect of a ˜fair and accurate
report of legal proceedings held in public, published contemporaneously and
in good faith™. Section 4(2) gives the court the power to order that publication
of a report of the proceedings of any court be postponed for such period as the
court thinks ˜where it appears to be necessary for avoiding a substantial risk of
prejudice™. There was no power at common law to make such an order.785 In the
past the power was very rarely used by magistrates but was used quite often by
Crown Courts.786 More recently it has been used increasingly by magistrates™
courts.787


Publishing material not heard by the jury
The media are not permitted to publish evidence held to be inadmissible. This
would normally preclude publication of what takes place in the absence of the
jury even though it is fair and accurate and contemporaneous and relates to
what occurred in open court. It would not be published ˜in good faith™ since it
would normally be obvious that it was not intended to be seen by jurors and if
published might prejudice a fair trial. The contrast with the comparable rule in
the USA emerged clearly in the televised trial of O.J. Simpson during which
viewers around the world frequently heard evidence not heard by the jury. In
the United States the jury in a criminal case is quite often kept together
784
Criminal Law Review, 2001, p. 465 and lengthy commentary.
785
Independent Publishing Co Ltd v. A-G of Trinidad and Tobago [2004] UKPC 26, [2005] 1 All ER
499. The Judicial Committee said that without such legislation the court could warn the press
of the danger of contempt but that such an order had no validity.
786
See C. Walker et al, ˜The Reporting of Crown Court Proceedings and the Contempt of Court
Act 1981™, Modern Law Review, September 1992, p. 647.
787
See M. Dodd, ˜Lifting the Veil of Secrecy: Reporting Restriction Orders™, 165 Justice of the
Peace, 2001, pp. 498 and 522.
376 Pre-trial criminal proceedings


(sequestered) throughout the trial “ in a hotel or other suitable facility. In
England this only happens after the jury starts to deliberate and under the
Criminal Justice and Public Order Act 1994, s. 43 the judge has a discretion to
allow them to go home overnight even then.


Research evidence as to the (minimal) effect of pre-trial publicity
A study conducted for the Law Commission of New Zealand explored the e¬ect
of pre-trial publicity on jurors. The researchers took a sample of forty-eight
high pro¬le jury trials conducted in di¬erent parts of the country in 1998.
Questionnaires were given to all potential jurors on their arrival at court at the
start of the week in which a sample case was starting. These asked whether they
knew anything about two or three of the cases starting that week and, if so, from
what source. Jurors in the sample cases who agreed were interviewed after the
trial. From a potential sample of 575 jurors, 312 were interviewed “ an average
of 6.5 per jury.788
Given that all the sample cases were high pro¬le, a surprising ¬nding was that
so few of the jurors were even aware of the pre-trial publicity. In over half the
cases (twenty-¬ve out of forty-eight) no juror recalled seeing any pre-trial pub-
licity. In all, only ¬fty-eight of the 312 jurors (19 per cent) recollected seeing any
and only sixteen jurors admitted to knowledge of any details of the alleged
o¬ence or the accused™s involvement (paras. 7.48 and 7.52). When jurors who
had seen the pre-trial publicity were asked whether it had any impact on their
thinking about the case, only two acknowledged that it had:
In summary, therefore, jurors were only rarely aware of su¬cient details of pre-
trial publicity to enable them to form any bias or prejudgment. When they were,
for the most part they reported that they consciously made an e¬ort to put that
aside and focus upon the evidence alone; and when they did not, other jurors in
the process of collective deliberations generally overrode any individual bias or
predetermination [para. 7.57].
As to publicity during the trial:
While some other jurors were more a¬ected by media coverage during the trial,
there is similarly no evidence that any of the collective deliberations of the juries
in the sample were ultimately driven or even in¬‚uenced by this [ibid].


Anonymity for victims (and defendants) in sexual offence cases
Since 1976, the victim of rape has been given a measure of anonymity. The
Sexual O¬ences (Amendment) Act 1976 provided anonymity for the victim
after someone had been accused of rape, but not earlier. Also the judge could

788
W. Young, N. Cameron and Y. Tinsley, Juries in Criminal Trials Part Two: A summary of the
research ¬ndings, New Zealand Law Commission, November 1999 “ www.lawcom.govt.nz.
377 Publicity and contempt of court


lift the protection pre-trial if he thought that would cause witnesses to come
forward or if the accused™s defence would otherwise be prejudiced. At the trial
he could lift the protection if satis¬ed that it was an unreasonable restriction on
reporting and that it was in the public interest. The 1976 Act also gave the
defendant the same protection.
The Criminal Justice Act 1988, s. 158 extended the protection of anonymity
to the victim from the moment of the allegation but withdrew the protection of
anonymity from the defendant.
The 1976 and 1988 Acts dealt with rape, attempted rape, incitement to rape
and accomplices to such o¬ences. They did not deal with conspiracy to rape or
burglary with intent to rape. The Sexual O¬ences (Amendment) Act 1992
extended the statutory anonymity of rape victims to other sexual o¬ences.
Under the 1992 Act the accused can ask for the prohibition to be lifted if he can
satisfy the judge that it is necessary to induce witnesses to come forward because
the conduct of the defence would otherwise be substantially prejudiced. At the
trial, the prohibition can be lifted if the judge considers that the e¬ect of the
prohibition is to impose a substantial and unreasonable restriction on report-
ing and that it is in the public interest to remove it.
Anonymity for defendants In December 2002, the House of Commons Home
A¬airs Committee in its report on the Criminal Justice Bill 2002“3 said there
was a case for extending the anonymity for victims of sex crimes to those
accused of such crimes. There was a basis for distinguishing this category of
o¬ence in that, ¬rst, there was a risk of mistaken prosecutions and, secondly, the
stain on a person™s reputation was serious and permanent. It urged the Home
Secretary to consider amending the Bill to provide for this.789
The Home Secretary declined the invitation. At the report stage of the Sexual
O¬ences Bill 2003, Lord Ackner successfully moved an amendment to restore
the defendant™s right to anonymity in rape cases that he had between 1976 and
1988. The Government was defeated on the issue in the House of Lords by
109“105,790 but the amendment did not survive. It was reversed in the
Commons and when the matter returned to the Lords, the Government won
the vote by eighty-six to twenty-six.791


No reporting of names of vulnerable witnesses “ the Government climbs
down
The Youth Justice and Criminal Evidence Bill 1998“9, as originally drafted,
would have made it a criminal o¬ence to identify a person under eighteen who
might be a victim, a witness or a perpetrator of crimes under investigation
unless one of the exceptions applied. Not surprisingly, this extraordinarily


789
HC 83, December 2002, para. 145.
790
House of Lords, Hansard, 2 June 2003, cols. 1084“95.
791
House of Lords, Hansard, 13 November 2003, col. 1622.
378 Pre-trial criminal proceedings

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