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Review of the
Criminal Courts of England and Wales

Chapter 10 - Preparing for Trial

Introduction
Four essentials
Identifying the issues
Bail
Advance indication of sentence
Disclosure
Case management
Victims
Information technology
A Code of Criminal Procedure

INTRODUCTION

1 A wide misconception of the general public is that all or most of the criminal justice process takes place in court. But proceedings in court require preparation - much and by many. The trouble is that the process, by its very nature - fragmented among various government departments and agencies and adversarial as between prosecution and defendant - does not encourage joint and efficient preparation. There are constitutional and administrative divides, sharpened by separate budgets, that get in the way. There are limits to what can be expected of co-operation between the parties, particularly when the issue is as to guilt as well as sentence. Guilty defendants seeking to avoid conviction have not the same urgency as the public about the need for an efficient criminal justice system. Some innocent defendants, advised by their lawyers to keep their cards close to their chests, are equally unenthusiastic. And, as is now increasingly recognised, there are other individuals involved in the process, such as victims, witnesses and jurors whose interests need attention.

2 In all of these respects the process of criminal justice is a more difficult ground for orderly preparation by the parties and management by the court than in the case of civil disputes where the issue usually concerns two parties only, where legal protections for the defendant are less rigorous and where preparation for trial does not normally require input from public bodies. Unfortunately, the already infertile ground for efficient preparation of criminal cases - vital to just and efficient court proceedings - is aggravated by a number of unnecessary defects in the system. With will and resources, something can be done about them. There is now wide acceptance that there is scope for greater intervention by the court and various agencies, and for more vigour and co-operation by the parties without prejudice to their respective interests, in the preparation of cases for hearing.

3 Before considering areas for improvement, I should summarise the basic aims as I see them. Underlying them all is the truism that, although efficiency of the criminal justice process is an important end in its own right, it has a greater importance in its contribution to the overriding consideration in every case - a fair hearing leading to a just outcome.

4 First, the key to a just and efficient criminal process - good case preparation - is identification at the earliest possible moment of the likely plea and, if it is to be one of not guilty, the issues. There is a culture of last-minute decisions, which must be attacked if there is to be any significant improvement. Too often cases are warehoused between hearings, so that little is done until the next hearing is imminent. There should be active preparation for trial without constant recourse to the court. This depends in large part on the prosecution charging correctly at the outset, its timely and adequate disclosure of its proposed evidence and of all material otherwise relevant to the issues as it knows or believes them to be, and on the defence's early indication in response to such material of the issues it intends to take. The need for early and adequate identification of issues applies to proceedings in all courts, not just those to be tried by judge and jury; but, of course, the manner of securing it will depend on the proceeding and on the nature and complexity of the case.

5 In all this, regard must be had to the prosecution's obligation to make the court sure of guilt and the defendant's right of silence. But neither is threatened by requiring a defendant to identify with some precision the matters of fact and/or of law that he intends to put in issue. If his intention is to put the prosecution to proof of everything, or only to take issue on certain matters, he is, of course, entitled to do so when the matter reaches trial. But to delay telling the court and the prosecution what he challenges as a matter of tactics, has nothing to do with the burden and standard of proof or his right of silence. Those fundamental principles are there to protect the innocent defendant from wrongful conviction, not to enable the guilty defendant to engage in tactical manoeuvres designed to frustrate a fair hearing and just outcome on the issues he intends to take.

6 Second, the parties, not the court, are responsible for the preparation of their respective cases for trial and, as part of that, for informing each other of the issues, the scope of the evidence and points of law for resolution. Pre-trial hearings can be of great help if needed and held at the right time in the preparation for trial, but they should be reserved only for such matters as the parties cannot resolve informally between themselves. At present pre-trial hearings in their various forms,[1] in all but the most complex cases, are mostly unnecessary and misused. They are treated primarily as a means of bringing everybody together in court, to enable advocates to meet their clients (often for the first time and to take instructions), theoretically to focus on the issues of law and fact and to make decisions as to the conduct of the case. Of course, it is a good thing to do all of that, but a pre-trial hearing in court is not the place or the means for it, save as a last resort. It is misused largely because of a mix of failures by the prosecution and defence, aggravated by lack of resources on both sides. Sometimes, the charges are unrealistic because the prosecution has failed to review its case at an early stage and/or it has not served its proposed evidence or made due disclosure. This in turn has encouraged the defence to delay in its preparation or prompted an unwillingness to indicate a plea or the issues it intends to take at trial. There is also little incentive for publicly funded defence solicitors and counsel to prepare early for trial because they are not paid a discrete fee for a conference with their client or for early preparation. And, as they are paid a derisory fee for attending a plea and directions or other form of pre-trial hearing, there is also little incentive to prepare properly for it or for the trial advocate to attend.

7 Third, where there is a need for a pre-trial hearing the court and the parties should take full advantage of it to resolve all outstanding issues as to the conduct of the trial and to deal with any preliminary issues of law or fact that will assist that resolution. This calls for the court to adopt a more interventionist and authoritative role than has been traditional in identifying the issues for trial and in securing the proper preparation by both parties to deal efficiently with them. This in turn requires adequate preparation, not only by the parties and their advocates, but also by the judge with the benefit of sufficient time out of court in which to do it.

8 Fourth, there is the problem to which I have referred, of the uncooperative or feckless defendant and/or his defence advocate who considers that the burden of proof and his client's right to silence justifies frustration of the orderly preparation of both sides' case for trial. Experience in this country and elsewhere in the Commonwealth[2] indicates that, in the main, court sanctions won't compel the sort of forensic discipline that efficient case preparation requires, that they could cause injustice one way or the other and could often delay trial and increase expense rather than the reverse. However, the Review has indicated some general themes for encouraging better preparation and compliance with any directions that the court might be called upon to give. They include the introduction of a discipline of formal written orders (commonplace in the civil jurisdiction), a combination of incentives and change in professional culture, the latter aided by a properly structured system of payment which rewards preparation for trial, professional management systems that are subject to regular audit and, in extreme and clear cases, by professional sanctions and/or of loss legal aid accreditation. Among the incentives for the defendant himself might be the introduction of a system of advance indication of discounted sentence for a plea of guilty[3] and retention of bail or custodial privileges after a plea of guilty and before sentence.

9 Fifth, critical to a better system of preparation for trial is the development and introduction of a form of information technology that is common to all criminal courts, the various criminal justice agencies serving them and defence advocates. Such technology should enable each agency, prosecutor and defence advocate to make its or his appropriate input to a single case file, draw from it what it or he needs and it is appropriate for it or him to have, and for the ready transmission and updating of papers in the case. Coupled with this, there is scope, already being developed, for greater use of video-link technology to link courts and lawyers on both sides and defendants in or out of custody. With such facilities, it should be possible to do much of what is now the subject of wasteful and inefficient pre-trial hearings, including custody remand productions, and bail applications. In that electronic way, it should also be possible to recover some of the 'locality' of access to justice lost in the modern trend to concentration of courts into fewer larger centres. All of that requires common planning, management, commitment and pooling of resources by the courts, all the criminal justice agencies and also - and this is important - defence lawyers who will use and share the benefits of the new system. Hence the urgent need, to which I have referred throughout this Report, for a criminal justice system centrally planned, funded and directed.

10 Much of what I have said about the need for efficient case management was succinctly put by the Runciman Royal Commission, in 1993, summarising its intentions for its recommendations for change in the Crown Court, namely:

"to ensure that cases arrive at the Crown Court with the defendant's plea, so far as possible, decided and disclosed in advance and, if the trial is to be contested, with issues in dispute clarified as far as practicable. This should enable cases to be listed on the basis of a more reliable estimate of the length of time that the trial is likely to take. Clarification of the issues should also ensure that the evidence is put before the jury in such a way that the risk of a miscarriage of justice from its verdict is kept to a minimum".[4]

 

FOUR ESSENTIALS

11 Early identification of the issues, whatever form it takes, depends crucially on the ability and willingness of the prosecution and defence lawyers to do their respective jobs properly. There are four main essentials:

A strong and independent prosecutor

12 The Crown Prosecution Service has still to fill its proper role which, in my view, should be closer to the more highly regarded Procurator Fiscal in Scotland or the Office of the Director of Public Prosecutions in Northern Ireland. The Glidewell and Narey reforms have gone some way in this direction, but there is more to do. The prosecutor should take control of cases at the charge or, where appropriate, pre-charge, stage, fix on the right charges from the start and keep to them, assume a more direct role than at present on disclosure and develop a more proactive role in shaping the case for trial, communicating appropriately and promptly with all concerned. For all this the Service needs greater legal powers, in particular the power to determine the initial charge, and considerably more resources, in particular trained staff and information technology, than it has had in the first fifteen years of its life and than presently proposed.[5] The Government has recently committed itself to provide "a better resourced, better performing Crown Prosecution Service, more effective in prosecuting crime and progressing good quality cases for court".[6] These are fine words, but are reminiscent of previous expressions of intent that were not implemented.

I recommend that the Crown Prosecution Service should be given greater legal powers, in particular the power to determine the initial charge, and sufficient resources to enable it to take full and effective control of cases from the charge or pre-charge stage, as appropriate.

 

Efficient and properly paid defence lawyers

13 The contribution of defence lawyers to the just and efficient working of the system is equally critical. They too need to be properly resourced - paid - if they are to make a proper contribution consistent with their duty to their clients and the court. They also need to keep abreast of changes in law, procedure and technology through continued professional development. The basis and levels of their pay are not directly within my terms of reference. But I cannot ignore some of the effects of poor payment in publicly funded cases on the working of the criminal justice process.

14 Nearly all criminal defence work is publicly funded, accounting, in 2001-2002, for 7% of the total budget of £12.8 billion for the criminal justice system.[7] Publicly funded defence lawyers, the Bar and solicitors, need more support than they receive at the moment, in the form in which the prosecution case is presented to them and in proper pay for necessary preparatory work. There has been much change as to public funding in the course of the Review, and more is to come. The Legal Services Commission took over from the Legal Aid Board the public funding of defence work in April 2000.[8] And on 1st April 2001 the Criminal Defence Service was established under the aegis of the Commission to undertake piloting and research into a mixed system of public funding of criminal defence through salaried employees and contracted private practitioners.[9] A new system of franchising solicitors for publicly funded work in magistrates' courts was introduced in October 2000 as a preliminary to the implementation of a contractual scheme with the Criminal Defence Service on 2nd April 2001. There are similar proposals for franchising solicitors in the Crown Court from 2003.[10] Negotiations are also under way with the Bar Council over the extension of franchising arrangements to barristers' chambers.

15 Salaried public defenders will be introduced as part of a four year pilot starting in 2001/2002. Six offices will be established, each based in its own premises away from the Legal Service Commission's regional offices. The first pilot areas will be Birmingham, Liverpool, Middlesbrough and Swansea (with two more yet to be announced).[11] The intention is that the salaried and franchised services will operate alongside each other, with the work of the former being subjected to independent monitoring by outside researchers, who will publish comparative reports. All materials developed by the Criminal Defence Service in relation to public defenders will be made generally available on its website for the benefit of the whole profession.

16 As to public funding of private practitioners, this is not the place to examine in detail what has gone before or what is to replace it. To set the scene, however, I should mention the introduction in January 1997 of a graduated standard fees scheme, the system of calculating all defence advocates' fees, including those of QCs, for cases lasting up to ten days in the Crown Court. The Lord Chancellor has recently amended the scheme so as to extend it to cases lasting up to 25 days and has also reduced the level of fees so as to achieve parity between defence fee levels and those paid to prosecution advocates. In doing so the Lord Chancellor stated that his intention was to reduce the total cost of advocates' fees for Crown Court defence work by about 10%. The Bar Council supports standard fees in principle, but argues that these reductions have occurred over a period during which procedural burdens on them and the costs of practice have increased. And it claims that the true effect of the reductions cumulatively amount to at least 25% for the junior Bar, 36% for Queen's Counsel and 27.5% for the criminal Bar over-all.

17 Before summarising the fee structure itself I should record, with all the emphasis I can, that the general thrust of the criminal graduated fees scheme, and of the latest extension of it, is fundamentally flawed in that it does not provide an adequate reward or incentive for preparatory work. Quite apart from the interest of justice in securing a fair trial, the scope for savings and improvement in the efficiency of trial preparation are enormous. Yet the current fee structure, present and, seemingly, proposed, for publicly funded defence work perversely discourages, rather than encourages, efficient preparation.

18 In brief, the payment scheme in magistrates' courts is for a flat fee in all cases for a guilty plea and a graduated payment for most trials. These fees include a notional element for case preparation, but it is not separately identified. Longer and more complex cases are subject to the taxation procedure (i.e. scrutiny after the event by court staff of what has been done in the case). In magistrates' courts, the defence solicitor, who holds the budget, runs the case as he sees fit and, if he instructs counsel, pays him from that budget.

19 In the Crown Court, solicitors and barristers are paid separately. For guilty pleas and trials lasting up to two days, solicitors are paid standard fees which, again, include a notional element for preparation including securing proper prosecution disclosure, taking instructions from the defendant and preparation and service of the defence statement. For longer trials, solicitors' bills are subject to taxation, though the Lord Chancellor is considering other ways of remunerating this work. In the very longest of trials (generally those lasting more than five weeks) the Criminal Defence Service enters into a specific contract with solicitors and counsel for the work that is to be undertaken.

20 As I have indicated, counsel is paid on the basis of standard graduated fees for trials lasting, now, up to 25 days. Though these fees contain notional elements for preparation, barristers receive no identifiable or discrete fee for any preparatory work, which ought in many cases to include advising on prosecution disclosure, holding a conference with the defendant (in prison, if he is in custody) and advising on the form of the defence statement, on evidence and the general conduct of the case. The one exception is an allowance of a flat fee of £75 (shortly to rise to £100) for preparing for and attending a plea and directions hearing - less than many a tradesman might charge for an hour or two's work even after the increase. The expectation is that counsel instructed for the trial will attend the plea and directions hearing. But such hearings are not listed to suit his availability and he is frequently engaged in another case when it takes place. The reality is that other - sometimes less experienced - counsel attend them. They will have had little or no part in such preparation of the case as there has been, and no authority to advise or commit the defendant to any critical matters needing resolution. It is no wonder that defendants, who have yet to see their trial counsel, are reluctant to enter pleas at that stage or to commit themselves to a firm strategy for the trial.

21 The problems of the inadequacy of payment for preparatory work and of the perverse structure discouraging rather than encouraging professional diligence at that critical stage of the process is common to proceedings in magistrates' courts and the Crown Court. But they are particularly pressing and costly in the latter. The perversities take two forms. The first, which is inherent in the system, is that the longer the trial the greater the brief fee. Poor preparation by one or both sides almost always lengthens trials and the system rewards them for it with additional fees. The second is where the defendant, for want of proper preparation by either or both sides or for some other reason such as lack of access to him in prison, initially pleads not guilty and only later changes his plea to guilty on the day of trial. In that event his lawyers receive more money in the form of a 'cracked trial' fee than they would have done if he had pleaded guilty from the outset.[12]

22 Those responsible in the Lord Chancellor's Department for devising an extension and modification of the existing graduated fee scheme are well aware of these features. In fact, many of the problems inherent in the standard fee system derive from the Lord Chancellor's Department's and the Legal Services Commission's concern about their own administrative and financial requirements, regardless of the consequences for other parts of the system. Standard fees suit both the Department and practitioners, since they are cheap to administer, predictable in quantity and quick to pay out. But they do not provide any incentive for adequate and timely preparation.

23 In my view, there is an urgent need for a change in the system of payment of defence lawyers to ensure that proper and timely preparation is encouraged by the payment of adequate fees for preparation. These fees could be calculable, whether on a percentage basis or otherwise, by reference to the over-all fee, and be deductible from it if want of proper preparation results in unnecessary pre-trial hearings and/or increases the length of trial. In the event of change of trial advocate, any difficulties as to entitlement to the preparatory fee should be capable of resolution by professional regulation. In addition, or alternatively, if my recommendations in paragraphs 221-228 below are adopted, in jury and other appropriate cases such a payment might be tied to the preparation of a case and issues summary.

24 A suggestion of His Honour Judge David Mellor, which I find attractive, focuses more sharply on the contribution of preparation to the process. It is that, in all but the largest cases requiring individual assessment or tender, the basic or 'core' fee should be a standard graduated fee for preparation. It would be on a graduated basis calculated according to weight and complexity. All other payments would be in the form of standard graduated uplifts on that figure, depending on whether the preparation results in a plea of guilty or a trial. There would be an enhanced uplift where it could be shown that preparation has shortened a trial, and daily payments ('refreshers') for trials lasting beyond one day.

25 For its part, the Legal Services Commission is proposing a system of 'quality assurance standards' for Criminal Defence Service contracted lawyers, but plans its introduction only after the outcome of its pilots to be conducted over the next four years.[13] The criteria for such a system should be selected so as to measure the quality of decisions as well as the achievement of staged targets, since the latter may not be a true measure of progress. Devising a system may not be easy; but there is already some experience in operating quality assurance standards in publicly funded work.[14] Contracts could provide for spot auditing of files and otherwise monitoring performance. In extreme cases, they could enable the Commission, subject to a right of appeal,[15] to remove or not renew the offending practitioner's contractual entitlement to undertake publicly funded work or to confine him to certain types or volume of work. An analogous regime could be devised for barristers' chambers, once franchising arrangements are extended to them.

26 A third option would be to tie the judge's role in case preparation to triggering payment. It could build upon an interesting pilot project shortly to be undertaken at the Crown Court in Manchester Minshull Street under the supervision of His Honour Judge Woodward. Under the scheme, technological support has been provided to a dedicated Crown Prosecution Service team, four firms of defence solicitors and six sets of chambers and to the court. It will enable all the preparatory stages in criminal cases (excluding child abuse cases and those with more than four defendants) to be logged on a common access secure website, using forms derived from (but more detailed than) those used for plea and directions hearings. Protocols will set out what should be achieved by whom, and on what timescale. At a set point in time, the judge will interrogate the website, and if the case is ready, make the appropriate orders and allocate a trial date. Such "electronic" pre-trial case preparation is likely to have significant advantages over the present system. First, since a pre-trial hearing would not normally be required, it would be more convenient for trial advocates to attend properly to the preparation of their cases. Second, there would be significant savings in court time and in the accompanying expense and inconvenience. Third, it would be possible to tie the procedure to the payment of a realistic figure to defence lawyers if and when the case is certified by the judge as ready for listing. If the judge were to consider that a hearing is still necessary to bring the case to a stage of readiness, payment would depend upon the outcome of the hearing. If the case presented evidential or other difficulties which clearly merited an oral hearing, this could be indicated by the judge, and remunerated by an additional fee; but, if there were no such justification, it would not be payable. Such a system could, therefore, provide both incentives and sanctions.

27 I do not attempt more than to emphasise an urgent need to remove the perversities in the present system and to suggest possibilities for a better one. Those responsible should explore and develop a solution in close consultation with the Criminal Justice Council and the legal professions.

I recommend that urgent consideration should be given to changing the structure of public funding of defence fees in the criminal courts so as properly to reward and encourage adequate and timely preparation of cases for disposal on pleas of guilty or by trial, rather than discourage such preparation as it perversely does at present.

 

Ready access by defence lawyers to their clients in custody

28 Critical to the process of preparation is early and ready access by defence lawyers to their clients. This should not be a problem where defendants are on bail, save for the unsatisfactory arrangements for payment for preparation, including conferences, to which I have referred. It is, however, a real problem where defendants are in custody. Defence lawyers often have great difficulty in gaining access to their clients in custody at times and for sufficient periods for them to take proper instructions and to advise. This is particularly so for pre-trial conferences in prison in the late afternoon or early evening, often the only time that busy practitioners can manage if they are engaged in court on other matters in the day. It is also a problem at court during trial, when it is frequently necessary to discuss the case before or after the day's proceedings and the defendant is brought to court late and returned promptly to prison.

29 There are no national standards or rules governing the access of unsentenced prisoners to their legal advisers. Practices as to prisoners' access to the telephone to talk to their advisers and for legal visits vary from prison to prison, and in some instances even from shift to shift within the same establishment. A recent thematic review by the Prison Inspectorate of the treatment and conditions of unsentenced prisoners[16] found that, over-all, remand prisoners, particularly those in custody for the first time, had difficulty in obtaining legal advice in prison and that prison officers were rarely proactive in helping them to do so. Here are some of the practical difficulties, most of which the Inspectorate highlighted:[17]

30 It is not surprising that the Inspectorate found that Prison Governors frequently failed to discharge their responsibilities under Prison Service Rules to allow remand prisoners effective access to their legal advisers:

"In our view the barriers to effective communication with legal advisers constitute an obstacle to the fair and just treatment of unsentenced prisoners which may well not stand up to legal challenge under the Human Rights Act, Article 6 which guarantees rights consistent with the proper preparation and conduct of a defence, including the right to consult with a lawyer prior to and during the trial. ...."[19]

31 I should not leave that finding without also referring to the undoubted reluctance of a significant proportion of both the Bar and solicitors to visit their clients on remand in prison, partly because of the difficulties it presents for them, but also because they are not paid properly for it. Quite apart from the injustice to defendants, those difficulties are another good example of one agency making relatively minor economies at the expense of a much greater cost to other agencies and individuals involved in the criminal justice process. If remand prisoners and their legal representatives could contact each other more readily, they could, together, prepare their defences more efficiently and earlier, and the need for defendants to attend pre-trial hearings simply in order to meet their legal representatives would go. It would also remove the need for many such hearings altogether. I should add that, in any event, many remand prisoners would prefer to remain at prison and participate in any preliminary court proceedings through video-link than endure the discomfort and other inconvenience of court attendance, which also puts them at risk of the upheaval of having to transfer to another cell on their return to prison.

32 There are a host of obvious answers to most of the difficulties that I have mentioned, which may involve large or relatively small initial expense to the Prison Service and other agencies, but which would almost certainly achieve long-term savings for it and for the criminal justice system as a whole. For example, the arranging of legal visits could be expedited and eased by the basic means of installing dedicated telephone lines in prisons, and/or by the provision of a secure internet facility for on-line booking of visits, a facility at present only available in 2% of the country's prisons. Another and more significant improvement in its potential for savings in time and expense, would be the introduction of widespread video-conferencing arrangements between defence lawyers, operating from their own offices or a shared facility, and prisons. Such steps would remove the root causes of many of the difficulties in communication between remand prisoners and their legal advisers. With or without them, there is an urgent need for the formulation of national standards accompanied by protocols with others including the Bar Council, the Law Society and the Criminal Defence Service, to ensure that unsentenced prisoners in custody are at no disadvantage to those on bail in preparing their defences.

33 Accordingly, I warmly support the Prison Inspectorate's recommendation in its thematic review[20] that the Prison Service should introduce standards for access to due process for unsentenced prisoners which ensure that they experience no greater jeopardy than bailed defendants in preparing for their trial.

Better communication systems

34 Fundamental to all improvements in case preparation at the pre-trial stage is the need to harness advances in information and communications technology. In para 26 above, I have described the pilot exercise due to be undertaken in Manchester into electronic plea and directions 'hearings'. In my view, this points the way forward to a system in which prosecution and defence can exchange information quickly and cheaply, and in which the court can monitor progress without the need to call the parties in for a hearing. Video-conferencing also has an important part to play in allowing face to face communication without having to assemble everyone in the same room. The Lord Chancellor's Department is introducing discrete, secure audio-visual links from all magistrates' courts to the 'local' prison, to be used for remand hearings.[21] The use of these could be extended to solicitors who wish to take instructions from their clients. There need only be a simple booking system which might allow access to the facility even outside normal court hours. In the longer term, the recommendations I have made in Chapter 8 for electronic case files would allow all those involved in the case to work online, extracting the information they need and making their own contribution. The potential of such technologies for increasing the efficiency with which cases are prepared is very significant. Without them, case management systems for criminal cases will remain anchored in the last century.

 

IDENTIFYING THE ISSUES

The charge

35 A significant contributor to delays in the entering of pleas of guilty and in identifying issues for trial and, in consequence, the prolonged and disjointed nature of many criminal proceedings, is 'over-charging' by the police and failure by the Crown Prosecution Service to remedy it at an early stage. All too often the prosecutor does not review the case thoroughly or with a sufficiently realistic eye until late in the day. This results, as I have already noted, in the defence tendering and the prosecution accepting last minute changes of plea to lesser offences, including those of defendants in 'either-way' cases who only opt for trial with a view to securing a reduction in charges in the Crown Court. And, even where last minute reductions or changes in charges do not produce pleas of guilty, much time and money may have been spent by both sides in preparing for a bigger and more complex trial than in the event takes place. The Crown Prosecution Service Inspectorate, in its Annual Report for 1999-2000, noted that about 23% of all indictments in the Crown Court had to be amended before trial.

36 This pattern encourages defendants who believe, rightly or wrongly, that they have been overcharged to maintain tactical pleas of not guilty until the last minute. It can also give rise to hasty, ill-considered and inappropriate acceptances by the prosecution of pleas of guilty, which bewilder and distress victims, distort sentencing decisions, engender appeals against sentence and, sometimes, artificially prevent the Court of Appeal, from doing justice in the case. There are, of course, other reasons for last minute changes of plea, including a reluctance by defendants to face reality, a hope or expectation that proposed prosecution witnesses may not turn up to give evidence at the trial or simply a short-term consideration of retaining prison privileges or prolonging remand on bail for domestic reasons. Nevertheless, a mistaken decision as to charge at the start of the case can have a fundamental and damaging effect on the preparation by both sides for trial and in the court's attempts at efficient case management. In human terms, the effect of prolongation, repeated attendance at court and uncertainty of witnesses, victims, the accused himself, relatives and others concerned in the proceedings can be disruptive and distressing.

Public prosecutions

37 Much of the problem is due to the fact that the police, not the Crown Prosecution Service, initiate prosecutions. The police charge. The Crown Prosecution Service reviews the charge after the event; and, in doing so, it applies a more stringent test than that of the police, as I describe below.[22]

38 The police, in charging, act under the operational direction and policies of their individual Chief Constables, each subject to the oversight of his own police authority. In most cases they do not have the benefit of advice from the Crown Prosecution Service at this early stage. Its role has been almost wholly reactive - quite unlike that of the procurators fiscal in Scotland who have a grip on the case and what to charge from the very start. The Service is normally only brought into the picture for advice and review when the charge has been preferred or the summons issued, and the potential for damage created. The recent location of Crown Prosecution Service lawyers at police stations to be available to advise the police on charging and other matters has led to some improvement. However, the Crown Prosecution Service Inspectorate, in its Annual Report 1999-2000, still found that 22% of police charges relating to assault, public order and road traffic offences were incorrect.

39 We talk of 'the prosecution' as if it were a single entity. The Philips Royal Commission envisaged that, although the police and prosecutors would have separate and distinct responsibilities, the system would:

"depend ... upon co-operation, with checks and balances operating within a framework in which all are seeking the same objectives. This unity of purpose, but independence of responsibility could be symbolised by providing that all cases ... brought by the police are brought in the name of the Crown and by designating the local prosecutor as 'the Crown prosecutor'.[23]

40 But there is no unified prosecution. The police and Crown prosecutor are institutionally, financially and culturally separate from and independent of each other. In recent years the Glidewell and Narey reforms have gone some way to encouraging greater unity of effort and to involve the prosecutor earlier in the process. Sir Iain Glidewell and his colleagues urged a shift in the centre of gravity of the Crown Prosecution Service's operations from magistrates' courts towards the Crown Court, a devolution of power from the Crown Prosecution Service headquarters to local Chief Crown Prosecutors, establishment of its 'proper role' as an integral part of the criminal justice system[24] and a clearer definition of the proper relationship and responsibilities of the police, the Service and the Courts.[25] As to the Service's relationship with the police, they recommended that the police should remain responsible for investigation and charging and the preliminary preparation of case papers, and that the Service should be responsible for the prosecution process immediately following charge, advising as to any further investigation and the preparation of the case file, arranging the initial hearing in the magistrates' court and witness availability, warning and care.[26] In the area for which both services would have a continuing role, the preparation of the case file, they recommended the creation of combined Crown Prosecution Service and police 'criminal justice' units headed by a Service lawyer, which were also to have sole conduct of fast-track cases and to be responsible for case management in magistrates' courts.[27] They also recommended the creation of what are now called criminal trial units consisting of lawyers with support staff, to be responsible for all prosecutions in the Crown Court and to act as advocates in trials of either way cases in magistrates' courts.[28] Martin Narey, in his Report,[29] also advocated the need to bring police and the Service closer together in the preparation of cases for trial by locating prosecutors in police stations to advise their administrative support units.[30]

41 Most of the Glidewell and Narey recommendations have been adopted and are being implemented after local pilots. Crown Prosecution Service staff are now increasingly located in or close to police stations working in liaison with the police in criminal justice units and are receiving papers for review shortly after charge. Although there are some difficulties in providing accommodation for them to work together in this way, early signs[31] are that the new system is producing some improvements in efficiency and savings, but not, in the main, in the accuracy of charging. An evaluation[32] of the pilot schemes to implement the Narey recommendations showed, for example, that, in six areas where a Service lawyer was 'on call' for 24 hours a day, there had only been twelve calls for advice on charging over a period of six months. Seemingly, police officers in those areas felt that they were capable of handling matters themselves or were content to wait for advice in normal working hours. Although the officers' assessment of the position may have been correct, the continuing large proportion of prosecution cases that are discontinued or proceed with reduced charges suggests that there is still much wrong with the system. The authors of the evaluation recommended other strategies to achieve more and earlier co-operation between police and the Crown Prosecution Service. This has been given added urgency since the abolition, from 15th January 2001, of committal proceedings for indictable-only offences,[33] resulting in the Crown Court receiving serious cases within days of charge. It will become even more pressing if my recommendations, in Chapters 5 and 7, for abolition of committal proceedings in 'either-way' offences and/or for the creation of a unified Criminal Court with three levels of jurisdiction are accepted.

42 The hope, expressed in the Philips Royal Commission Report,[34] that the expertise of the police in investigating would simply be supplemented by the legal expertise of Crown prosecutors failed to acknowledge that the scope and manner of investigation largely determine and shape the ensuing legal process. Moreover, that Report was written against a very different procedural landscape. Notable changes have since combined to require more carefully prepared and faster prosecutions than before, for example: the Criminal Procedure and Investigations Act 1996, imposing on the prosecution rigorous and elaborate obligations of advance disclosure; the Crime and Disorder Act 1998, establishing simpler and faster procedures towards trial; the Human Rights Act 1998, introducing its potentially more testing Article 6 notion of a right to a fair hearing, including the right to prompt notification of the accusation; and Government initiatives to reduce delay.

43 As I have said, the police and the Crown Prosecution Service have different tests for charging. The Police and Criminal Evidence Act 1984 and its Code of Practice C[35] require an investigating officer, 'without delay' to bring a detained suspect before the custody officer for charging at the point where he considers that there is sufficient evidence for a successful prosecution and that the suspect has said all that he wishes to say about the offence. This test is different in one respect, and arguably different in another, from those governing the Service under the Code for Crown Prosecutors.[36] The Service may only continue a prosecution if it passes both an evidential test, expressed in the Code as whether "there is enough evidence to provide a realistic prospect of conviction", and also a public interest test. As to the respective evidential tests, the police tend to apply a lower threshold of probability in considering whether there is sufficient evidence to charge than will satisfy the Service at the review stage of "a realistic prospect of conviction". This is commonly the case when determining specific charges in a range of options where certain evidence, for example, medical or other expert evidence, has yet to be obtained. And, as to the public interest test, not only is it not an express requirement for a police officer considering whether to charge, it is hardly appropriate for him to shoulder that responsibility, especially in circumstances where the suspect is detained and he has to decide quickly.

44 In my view, consideration should be given to a move towards earlier and more influential involvement of the Crown Prosecution Service in the process to the point where, in all but minor, routine cases, or where there is a need for a holding charge, it should determine the charge and initiate the prosecution. The precise offences that could be left to the police without advance intervention by the Service could be provided by national guidelines contained within the Criminal Procedure Code that I have proposed. There would be nothing revolutionary or constitutionally difficult about such a shift. It would approximate to the arrangements of many other national and local prosecuting authorities in this country responsible for both investigation and prosecution of offences within their jurisdiction, including the Serious Fraud Office and various Government Departments, including the Departments of Trade and Industry, Health and the Revenue Departments. To my mind, since the Service has been given ultimate responsibility for the shape of the prosecution in its function of review of the charges and evidence supporting them after the start of proceedings, it would be logical and, certainly, more efficient to give it that control from the start. I note that the authors of the Review of the Criminal Justice System in Northern Ireland are of a similar view.[37]

45 Such a change, including correlation of the higher evidential and public interest tests at the stage of charge by the Crown Prosecution Service or, in minor, routine cases, by the police, would possibly require greater use of police bail to complete the investigation before charge. But this should be offset by: earlier involvement of the Service with the police in the investigation of the more serious cases; in consequence, a better understanding by the police of the evidential test governing decisions to prosecute; earlier pleas of guilty to properly investigated and charged prosecutions; a general increase in the speed with which cases proceed to trial; and greater confidence of victims, witnesses and the general public in the process as a result of fewer cases being discontinued after charge or continuing on reduced charges.

I recommend that:

Private prosecutions

46 The English criminal law is, historically, founded on the basis that every citizen has the right to invoke it by private prosecution. The entitlement has survived the development in the 19th century of organised police forces, not least, as one contributor to the Review has observed, because of the absence until the introduction in 1986 of a national prosecuting authority in the form of the Crown Prosecution Service.[38] Even now there is no single prosecuting authority for all matters. The Crown Prosecution Service, though by far the most comprehensive prosecutor on a national scale, coexists with a large number of other specialist national prosecutors, including the Serious Fraud Office, Customs and Excise and the Department of Trade and Industry, public agencies, such as the Driver Vehicle Licensing Authority, the Health and Safety Executive, and local authorities responsible for enforcing a wide range of environmental and consumer legislation and by-law control. Along with this mix of public prosecutors, the private prosecutor survives - just. The Philips Royal Commission in 1981 noted that, although the citizen had an almost unlimited right to issue proceedings, there were such severe restrictions on it in practice that it was very rarely used. This is still the case. The Prosecution of Offences Act 1985, which established the Crown Prosecution Service under the leadership of the Director of Public Prosecution, expressly preserved the right of private prosecution in cases not instituted by the police and certain other agencies, but it also empowered him to take over any private prosecution. Having done so, he may discontinue it where (though only where) he considers there is no evidential or legal case to answer.[39] And, as mentioned at para 51 below, there are a number of offences in respect of which the Attorney General's or Director's consent to prosecution are, in any event, required. In addition, there are formidable practical constraints on its exercise, including legal uncertainty as to the power to charge as distinct from laying an information for a summons or warrant for arrest, the need for some familiarity with legal process, the motivation to use it and the necessary financial resources.

47 A strong case has been advanced for abolition, or at least review, of the little that remains of an effective right of private prosecution.[40] The argument is that what might once have been a valuable safeguard against improper failure to prosecute has now been overtaken by other safeguards, and that even that limited use has a potential for expensive disruption of the system that is no longer justifiable. It is only in a very small number of cases that prosecutors wrongly decide against prosecution, leaving private individuals, successfully or not, to take up the baton.[41] And there have been some recent high profile cases where the Director, having taken the advice of experienced counsel, has decided not to prosecute, and ensuing private prosecutions have failed, sometimes after long trials mainly at the public's expense.

48 On the other hand, many feel that the right of private prosecution, though now largely a relic of our slow and incomplete move towards a single national prosecuting authority, may on occasion still operate as a necessary and effective safeguard against failure by public prosecutors properly and vigorously to enforce the criminal law. Like Burke's justification of the Royal Prerogative, its strength may lie in its availability when needed rather than in the extent of its use. For that reason, coupled with the relatively infrequent recourse to it, I am disinclined to recommend its abolition.

49 As a practical matter, there is clearly a need for an effective system for alerting the Director of Public Prosecutions to the initiation of private prosecutions, so that he may consider his power to intervene. There is no obligation on a private prosecutor to notify the Director before or within a specified time after he has begun a private prosecution, and no formal machinery by which the court concerned notifies him. In practice, the Director usually learns informally, if not through court staff, through the presence of Crown prosecutors in court at the time, or because the defendant asks him to take over the case and drop it. In my view, there should be a clear safeguard against private prosecution without merit, in the form of a duty on the court to inform the Director promptly of any private prosecution initiated before it.

50 The Philips Royal Commission's suggestion was that the would-be private prosecutor should first apply to the Crown prosecutor who, if satisfied, in accordance with his normal prosecuting criteria, that the matter should proceed, should undertake the prosecution. The Commission recommended that if the Crown prosecutor declined to prosecute, the complainant should be entitled to apply to magistrates for leave to do so himself. At that hearing the prosecutor would be required to explain his decision. Since the Director does not apply a public interest test for allowing private prosecutions to continue, the effect of this proposal would have been to preserve, although in reduced form the limited right of private prosecution. But it would also have introduced a cumbrous form of pre-charge check and, in my view, an inappropriate forum for it. As the Law Commission recommended,[42] when considering this as an aspect of the regime of consents to prosecution, it would make a more efficient safeguard against abuse to require the court to notify the Director on receipt of the application for a summons. In my view, the only filter on private prosecutions should be the power of the Director to take over the conduct of proceedings and discontinue them. But I do not see why, in considering whether to discontinue, he should not apply his normal public interest test as well as the evidential test.

I recommend that:

Consent to the charge

51 About 150 statutes creating criminal offences require the Attorney General's or Director of Public Prosecution's consent before proceedings are instituted. Most of these preceded the creation of an independent prosecuting agency in the form of the Crown Prosecution Service. In all cases where the Director's consent is required, it may be exercised by any Crown prosecutor,[43] which, given their general power to review and to discontinue prosecutions, effectively renders the requirement otiose. The Attorney General has not delegated his powers of consent, save to the Solicitor General.[44] Thus, the involvement in most public prosecutions of consequence of the Director, through the Crown Prosecution Service, or of the Director of the Serious Fraud Office, removes the need for most consent provisions where the decision is whether to continue, or, if my recommendation above is accepted, to initiate a prosecution.

52 The Law Commission has recently examined and reported on the continued justification for this check on public prosecutions.[45] The Government has not yet taken action on its recommendations. The Commission found that consent to prosecution is required in a wide variety of cases[46] and that it was difficult to discern a principled or otherwise rational basis for the inclusion of many of them. However, some are clearly offences in respect of which the decision to charge could involve particularly sensitive issues of public interest or of national security, for example, alleged breaches of security or public order, or offences of terrorism or corruption of a public official or public morals, such as publication of obscene material. The Commission recommended that the requirement of consent of the Attorney General or the Director of Public Prosecutions should be removed in all cases except for specified categories in which the requirement clearly protected the public interest. I support that recommendation.

I recommend the adoption of the Law Commission's recommendation to remove the requirement for the Attorney General's or Director of Public Prosecution's consent to prosecution, save in those categories of case where its retention clearly protects the public interest.

Mechanics of charging

53 There are two main ways of starting a prosecution. The first is by laying an information seeking the issue of a summons to an accused requiring him to attend a magistrates' court to answer the information, the second, by charge, normally at a police station. The summons procedure accounted for 54% of all prosecutions in 1999.[47] It is used by the police and other bodies when they have no power of arrest, or where that power was not exercised, and by individuals seeking to initiate a private prosecution. The application, which may be oral or in writing, is made ex parte before a magistrate - who may grant it if he considers it a proper case for process. The summons may then be given to the applicant to serve on the accused, or the court may do so on his behalf. Although, the decision whether to issue a summons is judicial, there is not normally a preliminary hearing. And, because of the large numbers of prosecutions begun in this way, magistrates' consideration of each information or batch of them is necessarily perfunctory. The majority of informations are in writing, often many dozens or even hundreds of them at a time before individual courts. Almost all road traffic prosecutions are begun in this way.

54 Turning to the second method of initiating a prosecution, police officers and other prosecuting authorities with power to initiate prosecutions may charge a suspect where they have reasonable grounds to believe that there is sufficient evidence for a successful prosecution against him. They may do so whether or not he is in custody. Most charges are made by police officers of suspects in their custody. In which event, the station custody officer is responsible for determining whether there is sufficient evidence to charge the suspect for the offence for which he was arrested and, if so, to charge him, remand him in custody or release him on bail and set a date for his first attendance at court. An accused in custody must normally be brought before a court within 24 hours.[48] And, under the Narey procedures,[49] an accused on bail is now likely to attend court within days, possibly hours, after being charged. Private prosecutors, for example those who have effected a 'citizen's arrest' and taken the suspect to the police, were thought to have a power to charge, but the law is not clear on the point, especially having regard to the station custody officer regime introduced by section 37 of the Police and Criminal Evidence Act 1984.[50]

55 In comparing the two methods of initiating a prosecution, two matters stand out. The first is the anomaly that, in the most serious cases, the police may do so by charging a suspect without the intervention of the court, yet not in the far greater volumes of lesser offences, where the process is by summons. The second is that the court's role in the summons procedure is now, perforce, exercised in so notional a manner as to make it unnecessary. And, as to the setting of the first date for attendance at court, there is no reason why the police should not have similar powers in a summoning process to those that they already have for the more serious cases in which they charge the suspect.[51] In my view, the time has come to introduce a common form for the commencement of public prosecutions and to remove from the mass of less serious ones the unnecessary, cumbersome and delaying involvement of the court. The involvement of the station custody officer in the more serious cases is primarily to protect the suspect who is in custody. The courts are well equipped in all cases to determine at an early stage after the commencement of the case the legal propriety of the charge. In addition, with the earlier involvement of the Crown Prosecution Service that is taking place and that I recommend,[52] there should be less, not more, scope for misguided or baseless prosecutions.

56 The need for change of this sort was identified as long ago as 1981 by the Philips Royal Commission, which recommended[53] the replacement of the alternative methods of initiating a prosecution, which it described as "the relics of the mid-nineteenth century system". It observed that the then procedure for charging had no statutory basis[54] and that, in practice, there was little effective magisterial scrutiny in the summons procedure. It recommended that there should be a single procedure for starting public prosecutions, one in which responsibility passed from the police to the prosecutor, that it should be called an 'accusation' and that it should not be subject to any magisterial scrutiny. This is my own view save for the suggested use of the word 'accusation' which, I believe, could be confusing. The word 'charge' conveys more accurately the notion of formal commencement of proceedings and is widely understood in that sense.

57 The common form of procedure for public prosecutions that I have in mind is a charge administered orally, coupled with manual service of a written copy, or by postal service of a written charge, coupled with a statutory requirement to attend court on a specified date on pain of arrest on warrant for failure to do so, as presently required with some summonses.[55] In either case the court should be provided with a written copy of the charge at the same time. The same system could apply to private prosecutions, save that it would be wise to retain the court as a filter for frivolous or vexatious attempts at prosecution by requiring the private prosecutor first to obtain permission from the court to make a charge. Even then it should be administered in written form only by manual or postal service. Existing provisions for listing, whether on prosecution by summons or in charging, should be standardised and extended to other smaller prosecution authorities who initiate their own proceedings. With the development of an integrated system of information technology for the whole of the criminal justice system, the booking of a court time on an 'on-line' court diary should become a simple matter for all prosecuting bodies.

58 I should comment briefly on the procedure of commencing a prosecution by way of a voluntary bill of indictment.[56] Under this procedure the prosecutor may seek the consent of a High Court Judge to prefer an indictment at the Crown Court without the defendant having been committed, transferred or sent there on the charge the subject of the Bill, or where magistrates have declined to commit him for trial. The procedure had its origin in a Victorian statute,[57] and until the statutory innovations, starting in 1987, of 'transferring' and 'sending' cases to the Crown Court, was the only way[58] of by-passing committal proceedings, or overcoming refusal of magistrates to commit. Its main, albeit exceptional, use was where committal proceedings had been frustrated by the defence or, where there had been a valid committal, to secure the trial of connected matters based on evidence not available at the committal, or to join a defendant who had been separately committed for trial. There seems little point now in retaining a procedure the main rationale of which was to provide an exceptional alternative to committal proceedings, themselves being overtaken by direct access to the Crown Court, and subject to control by the Crown Prosecution Service as to the evidential and public interest merits of prosecution. In my view, the voluntary bill procedure should be abolished and such safeguards as to its use as were provided by a High Court Judge should be built into the common form for public prosecution, final abolition of committal proceedings as a route to trial on indictment and a system of allocation of cases for trial that I recommend.

59 When a case reaches the Crown Court, the original charge or summons is withdrawn and replaced by an indictment.An indictment is no more than a written accusation of the crime after its signature, usually, by a member of court staff. No matter how a case is commenced, the Crown Court cannot try it unless this has occurred. Yet, an indictment normally does little more than re-state in different form the contents of a charge or summons. Although indictments, charges and summonses are governed by similar considerations as to particularity of accusation, duplicity, accuracy and so on, the formalities of drafting and preferring an indictment are peculiar to the Crown Court, in the main contained in the Indictments Act 1915 and the Indictment Rules issued under it.

60 The thousands of indictments that are prepared, lodged and signed each year amount to a significant administrative burden for the prosecution and courts to administer. The strongest argument in favour of the present system, that it acts as a check on the legal basis of the prosecution case, does not withstand examination, since neither by law or practice does the signatory normally consider the contents of the indictment. That is left for the judge at the plea and directions, or other pre-trial hearing. Indictments merely highlight the gap between the Crown Court and magistrates' courts, and further mystify the court process to 'outsiders'. It would be far simpler and more logical to maintain the same form of charge throughout the case and subject it to the same procedural and drafting requirements in all Divisions of the Court. To signify the final settlement of the prosecution case, the prosecution should be required to serve on the court and all parties at the latest by the pre-trial assessment date[59] a final trial copy of the charges on which it will rely. Thereafter, further amendments or alterations should be permissible only with the leave of the trial court.

Warrants

61 The technical requirements for the issue of warrants is complex and detailed, and I do not propose to set them out here, except as necessary to illustrate the problems they present in respect of defendants who fail to appear in response to a summons. At present, failure to attend court on a summons does not automatically result in the issue of a warrant of arrest; the court must first be satisfied that the summons has been served. Assuming that the summons was for a summary-only offence, and was not issued on the basis of information sworn on oath (which the majority will not have been), a police officer, or other suitable person must go to court to swear on oath that the information contained in the summons is true to the best of their knowledge. The court may then issue a warrant for failure to attend.[60] If the matter is indictable, a warrant may be issued without the information being sworn.[61].

62 I believe that these procedures are unnecessarily complex. There seems little logic in requiring a sworn information in summary-only cases, but not in indictable cases. It is supposed to act as a safeguard, since summonses that are posted may not have come to the notice of the person to whom they are addressed. But if a defendant has not received a postal summons, the procedure of swearing an information on oath does not overcome the problem. It might be intended to be a safeguard against abuse, yet it also fails on that count too, since there is no pretence of testing the witness. Indeed, the Act does not even require that a person with first hand knowledge of the offence swears the information. In many instances it is a wholly unrelated officer who will swear a number of informations at a time, or one who just happens to be available.

63 The procedure is, therefore, expensive and ineffective. I recommend that failure to attend court after a posted charge should enable the court, in its discretion, to issue a warrant for the defendant's arrest. The court could refuse to issue a warrant if there appears to be a defect on the papers, or other material irregularity. The procedure could take place in open court in order to ensure open justice, but without the attendance of police officers, merely on their paper application.

I recommend that:

'Dropping' the prosecution

64 The Crown Prosecution Service and other prosecuting authorities may and should stop a prosecution at any stage if there is insufficient evidence to proceed or the public interest no longer favours a prosecution.[62] There are three main ways of doing so, dependent on the court dealing with the matter and/or the stage of proceedings. The choice is important since on it depends whether the prosecution may later be reinstated. The first is discontinuance on notice. This may be done in a magistrates' court before hearing evidence for the prosecution in summary proceedings, and before committal or 'transfer' for trial in the case of an indictable offence. If the case is 'sent' rather than committed or 'transferred' for trial, the prosecution may discontinue at any time before the indictment is preferred. Subject to the accused's right to insist on continuance to enable him to secure an acquittal and thus bar any further prosecution, the prosecution may later reinstate the prosecution, say, if further evidence becomes available.[63] The second is withdrawal at the hearing in the magistrates' court, again permitting later reinstatement, but without the safeguard to the defendant of enabling him to insist on continuance to enable him to secure an acquittal. The third, the only way in which the prosecution can drop the case in the Crown Court after the indictment is preferred, is the common law device of offering no evidence, resulting in an acquittal and thus, no possibility of further proceedings for the same offence.[64]

65 The Runciman Royal Commission commented on the unnecessary complexity of these different forms and recommended[65] that the prosecution should be given the same power to discontinue cases in the Crown Court as before magistrates. However, the Government declined to follow this, and instead there is a new administrative procedure, available after arraignment and before the defendant is put in charge of a jury, enabling the offering of no evidence and entry of a verdict of not guilty by prior written consent and in the absence of the parties. I agree with the Runciman recommendation. It is clearly sensible to have a single and common form for stopping a case at the prosecution's behest, no matter what level of court or stage of the proceedings the case has reached.

66 Such a simplification is important now that indictable-only cases are reaching the Crown Court more quickly. It will be essential if my recommendations are adopted for abolishing committal proceedings in 'either-way' cases, for a unified Criminal Court and for a common form of charging and allocation of work to the appropriate level of court within it.[66] It is for consideration whether the common form should be of the discontinuance or offering no evidence variety. In either case the defendant can secure a verdict of not guilty, though in the case of discontinuance it is only by dint of insisting on the prosecution continuing, and taking the risk of conviction. In the case of offering no evidence, the decision is almost always ultimately for the prosecution, but can engage the time of the judge if asked, as he frequently is, to approve the prosecutor's decision.

67 In my view, the answer would be to combine the convenience of one procedure with the discipline of the other by enabling the prosecutor to discontinue the proceedings at any stage, up to and including the pre-trial assessment[67] without requiring the consent of the defendant or the approval of the court. This would enable a reinstatement in appropriate cases. The advantage of this procedure would be reduction of paperwork, and avoidance of the need for a hearing in the early stages of a case. But once the pre-trial assessment date has passed, the prosecution would be expected to have properly prepared its case, so that normally there should be no occasion for it to change its mind. If it then decides to drop the case, it should be entered as an acquittal. There would be no court hearing in either case unless required for consequential matters such as costs or return of property. As a safeguard, the prosecution should be able, even after the pre-trial assessment date, to apply to the court to leave the matter to 'lie on the file', but only where it could demonstrate good reason for the late decision, and the judge is satisfied that it is in the public interest. In those cases that would not have a pre-trial assessment date (generally the less serious cases), the defence should be entitled to apply for a formal acquittal upon receipt of the discontinuance notice after a stage specified in Criminal Procedure Rules.

68 Objections that a purely paper or administrative procedure would deprive interested parties, in particular, victims, of learning about the matter in a public hearing could be met by requiring the prosecutor to notify and explain the decision to them in advance of the notice of discontinuance. The Crown Prosecution Service already does this; and I return to that aspect later in the Chapter.[68] I see no danger or injustice to the parties or to any victim in removing from the procedure what remains of the courts' power to influence the outcome. The decision is now in the hands of the Crown Prosecution Service who should have the same competence and a proper regard for the public interest in deciding whether to stop as well as to continue a prosecution. .

I recommend that:

 

BAIL

69 A defendant's qualified right to bail must now be considered in the light of Strasbourg jurisprudence on the European Convention of Human Rights. The relevant provisions of the Convention are Article 5(1) and (3) and (4), providing for the right to liberty and security of the person, including entitlement to bail and to court proceedings to enforce it, and also Article 6(2), providing that a person charged with a criminal offence must be presumed innocent until proved guilty. Wherever possible, the courts must also read and give effect to legislation in a way that is compatible with Convention rights. The Law Commission, in a consultation paper in 1999,[69] identified three statutory provisions which, in its provisional view, should be repealed or amended because of a serious risk of non-compliance and consequent risk of claims to compensation. However, in its recent Report Bail and the Human Rights Act 1998,[70] it expressed the view that our law of bail is generally compliant with the Convention. More precisely, it concluded:

"1.9. ... there are no provisions which, upon analysis, cannot be interpreted and applied compatibly, or which, given appropriate training, decision-makers would be likely to apply in a way which would violate Convention rights.

1.10. This does not mean that we have given the law of bail in England and Wales an unequivocal 'clean bill of health' in the sense of being incapable of improvement following a general review...".[71]

The present system

70 After the police have arrested a suspect they may release him on bail or keep him in custody. In the latter event, they must charge him within 24 hours and bring him before a court as soon as possible, normally within 24 hours.[72] If they have not charged him, but wish to hold him while they make further enquiries, and they are investigating a serious arrestable offence, they may extend the period of custody to a maximum of 96 hours with regular scrutiny and warrants of detention from the magistrates' court. [73]

71 At an accused's first appearance before a court, both parties may make representations on the issue of bail and the court must decide whether to remand him on bail or in custody. Initial decisions may be made on inadequate or incorrect information, and defendants wrongly refused bail should have ready access to advice and help on the matter on their remand to prison. The Prison Service has a duty to assist in providing this access and, since September 1999, all remand prisons have been required and funded to provide bail information schemes.[74] Each establishment should have a bail information officer to interview prisoners, assess their cases and assemble information for the courts. Similarly, the Prison Service is obliged to ensure prisoners access to legal advice if they want it,[75] and each establishment should have an officer, known as a Legal Service Officer, for the purpose. The Prison Inspectorate's recent thematic report on the treatment and conditions of remand prisoners recorded wide variation in performance by establishments throughout the country, but over-all performance was pretty poor.[76] The Inspectorate acknowledged that the Prison Service was in a state of transition in the provision of these services and that it was too early to evaluate performance. But it urged effective monitoring by each establishment of their ready availability, and consideration of national monitoring as a key performance target for the Service as a whole.[77] This is clearly another area in which there should be national standards and, probably, protocols to which other agencies, including the Probation Service, the Legal Services Commission, the Bar Council and the Law Society should contribute and be parties.

72 In all cases the magistrates' court is the first court to consider bail. The starting point set out in the Bail Act 1976 is that all defendants charged with an imprisonable offence have a right to bail, save those charged with homicide or rape, previously convicted of such an offence.[78] It is only where the court is satisfied that the defendant falls into one or more of a number of limited exceptions that it "need not" grant bail. I stress the words 'need not', because they preserve the court's discretion or, more accurately, its ability and duty to decide the matter in accordance with the individual circumstances of each case. And, even in cases of homicide and rape, the courts retain an element of discretion since they may still allow bail "if there are exceptional circumstances".[79] The exceptions to the right to bail include where:

73 In deciding these questions, the court is required to have regard to: the nature and seriousness of the alleged offence and the probable sentence for it if the defendant is convicted; his character, associations and community ties; his previous bail record, if any; and, except where the case is adjourned for inquiries or a report, the strength of the prosecution case.[81]

74 Where the court is minded to grant bail, it may do so subject to requiring the defendant to provide a surety or sureties or to give a security for his surrender and/or to imposing such conditions as appear to be necessary to meet the various contingencies against which it might otherwise refuse bail. [82]

Criteria

75 Deciding whether to grant or refuse bail is a difficult exercise, based as it is on predictions about future behaviour. Grant of bail may enable a defendant rightly to retain his liberty and his job or wrongly to commit an offence whilst on bail. A refusal may unnecessarily deprive him of his liberty or rightly prevent him from committing offences that he would have committed if on bail. The main criteria in the 1976 Act that I have mentioned are designed to balance the right of an innocent person, or one who should not in any event merit a custodial sentence, from being wrongfully deprived of his liberty and the need to protect the public from a person awaiting trial with a propensity to commit offences during that time. As I have said, the Law Commission is of the view that the criteria and the statutory scheme of which they form part are capable of being applied in a manner compliant with the Convention. Quite apart from the Convention, the general tenor of submissions in the Review has been that they are about as good a formulation as can be devised to strike a fair balance between the two interests.

Quality and inconsistency of bail decisions

76 The problem is rather the way in which many courts interpret and apply the criteria. The consequence of 'wrong' grants of bail can be serious and far-reaching. The most recent Home Office research suggests that persons responsible for a large proportion of offences are not being identified and restrained early enough in the criminal justice process, particularly at the stage of consideration of bail.[83] The research indicated that in 1998 24% of a sample of 1,283 alleged offenders granted bail were subsequently convicted or cautioned for an offence committed whilst on bail. For cases within that sample of vehicle crime and shop lifting, the percentage rose to over 40%. Unsurprisingly, the longer the period of bail, the more likelihood there was of offending in the course of it. Thus, nearly 30% of those on bail for over six months offended in the course of it, compared to nearly 15% of those brought to trial within two months.

77 The Home Office figures also indicated that 30% of young offenders breached their conditions of bail and that their rate of offending was over double that of adults. In many instances, continuation of bail notwithstanding, breaches of the original bail resulted in further breaches. As the Association of Chief Police Officers have pointed out,[84] the courts are handicapped in the case of persistent young offenders. By section 23 of the Children and Young Persons Act 1969, they cannot require them to be remanded in secure accommodation unless they are of the opinion that "only such a requirement would be adequate to protect the public from serious harm" from them. There is evidence, from the police and others, that many courts seemingly do not regard driving stolen vehicles at speed, house burglary (unless accompanied by violence) or street robbery as representing 'serious harm' for this purpose. Perhaps the answer would be to amend section 23 to allow custody for persistent young offenders in cases where previous grants of custody have failed.

78 There is much criticism of the quality and of the lack of consistency of bail decisions.[85] The criticism falls more heavily on magistrates' courts than the Crown Court, because magistrates deal with most bail applications, often in the course of a crowded list and with insufficient information. A recent study of two London Magistrates' Courts showed an average length for bail proceedings of six minutes.[86] As to information, despite the introduction in 1988 of bail information schemes, it is often incomplete and for that and other reasons inaccurate. A research study for the Home Office in 1998[87] commented on the lack of ready availability to the police, prosecutors and magistrates of the defendant's criminal record and other relevant information, the need for training of magistrates and police custody officers in risk assessment, more and better bail information and support schemes, simplification of bail notices to defendants so that they know exactly what is required of them and changes in listing to enable more communication between the responsible agencies before the first remand hearing.

79 Another problem is that lay magistrates, who often sit in differently constituted panels, are, understandably, less consistent than their professional colleagues, the District Judges who sit full time. The problem should not be overstated. The quest is for consistency in approach and general outcomes, not uniformity of individual decisions. In such a difficult predictive exercise, balancing the interests of the defendant against those of the public, where decisions have to be made quickly, and often with insufficient information, it is to be expected that seemingly similar cases sometimes result in different decisions.

80 However, the degree, or perceived degree, of inconsistency in magistrates' bail decisions is capable of undermining public confidence in the criminal justice system, and there should be no let up in attempts to reduce significant inconsistencies. With the advent of Convention rights to our law, it is even more important that magistrates and judges should persist in this endeavour. The Law Commission, has urged that they should be provided with appropriate training and guidance on the making of bail decisions, with Article 5 particularly in mind. It also proposed, as a practical aid to correctness and consistency that all courts should record their decisions in such a way as to indicate clearly how they had been reached. I strongly support those proposals.

81 There is also some evidence of a laxness on the part of the Crown Prosecution Service and the courts to breaches of conditions of bail, the outcome often being a relaxation of the conditions. ACPO has observed:

"... Bail conditions rarely inhibit recidivists from committing further crime and police efforts to enforce bail are generally regarded with indifference by the courts. We should underline here that the complaint from police forces right across the country was unremitting, that when arrests were made for breach of bail, conditions were usually relaxed.

... Advancing applications for remands in custody and dealing with defence applications for bail is not an issue which the Crown Prosecution Service generally take on with any zeal.... [I]t is an almost universal observation of operational police officers that the Crown Prosecution Service are generally 'lukewarm' to this procedure".[88]

82 Such figures and descriptions, the latter replicated in many individual submissions in the Review, suggest that, however appropriate the criteria for balancing defendants' and the public interest, the manner of their application, particularly in the case of young recidivists, often frustrates the central aim of the criminal justice system - crime control. This defect is all too public. It is of understandable concern to victims of such crimes and the public generally who look to the courts to fulfil their role in that over-all objective. It is also dispiriting to police officers in their task of catching criminals and bringing them to justice.

I recommend that:

Appeals

83 Contributors to the Review have raised three main issues about appeals from bail decisions: first, the relationship between a defendant's right of appeal to the Crown Court against refusal and his right of recourse to a High Court Judge; second, as to the need for a right of appeal against conditions; and third, as to the extent of the prosecution's right of appeal against the grant of bail.

Appeal to the Crown Court and application to a High Court Judge

84 A defendant has a right of appeal to the Crown Court from a refusal to grant bail, but not against conditions magistrates have imposed on its grant.[89] There, the chain of appeal ends, though anomalously there is a statutory right in all cases to apply to a High Court Judge against magistrates' refusal of bail or the imposition of conditions in the grant of bail, empowering the judge, save in cases of homicide or rape, to grant bail or vary the conditions.[90] And a High Court Judge, sitting in chambers, also has an inherent and distinct power from that when sitting in the Crown Court, to grant bail before and after a case is committed or sent to the Crown Court.[91] This jurisdiction overlaps the original and appellate jurisdiction of the Crown Court. If nothing else, there are question marks about the right of defendants refused bail by a Crown Court judge in the exercise of his original or appellate jurisdiction, being able to renew the same application to a High Court Judge and, in the case of a conditional grant of leave by magistrates, to challenge the imposition of those conditions before a High Court Judge, but not by way of appeal to the Crown Court.

85 This is all a bit of a muddle and wasteful duplication of process. There may long have been a good reason for keeping the High Court Judge as a long-stop in support of the liberty of the subject. But there is less of an imperative for it now. We have a permanently manned Crown Court all over the country which can deal with the matter by way of appeal, and those detained in custody no longer have to await the next visit on circuit of the High Court Judge or apply to a judge in Chambers in London to seek release. It is a separate and parallel, not appellate, jurisdiction.

86 In my view, there is no longer any need for a High Court Judge to consider afresh the grant of bail after refusal by a magistrates' court or the Crown Court. If the magistrates' court and a Crown Court judge, the latter on an original application or appeal by way of re-hearing, acting within the proper bounds of their discretion, have refused bail, it is an anomaly that another judge, albeit a High Court Judge, is entitled to exercise a further discretion in the matter. It seems to me more in accord with principle, and a better use of judicial resources, to confine any reopening of a bail decision in the Crown Court, to an appeal to a High Court Judge on a point of law. There should be an initial application in writing for leave to appeal. It should identify with precision the point of law involved, which should not include complaints about the exercise of discretion dressed up as points of law. If the High Court Judge, on examination of the application, considers that there is an arguable point of law, he should grant leave for an appeal by way of oral hearing.

87 The Law Commission have concluded that our bail procedures are in practice unlikely to breach Article 5(4) or such procedural requirements of Article 6 as are appropriate to bail applications.[92] I do not believe that the reform that I propose would breach those rights. What is required is 'judicial supervision'of a decision to remand in custody, which, the European Court has held, implies certain characteristics, namely that the defendant must be able to participate in the proceedings, that they must be adversarial in nature and possibly, if the defendant so requires, that they must be in public. It does not require, in addition, a right of appeal, or where, as here the Crown Court has dealt with the matter on appeal from magistrates, a further right of appeal.

I recommend the removal of the right of application to a High Court Judge for bail after determination by any criminal court exercising its original or appellate jurisdiction, and the substitution therefor of a right of appeal from the District Division or Crown Division (Crown Court) on a point of law only.

Conditions

88 Conditional bail is permitted by Article 5(3) of the Convention. And the lack of provision for a defendant to appeal to the Crown Court against conditions imposed on the grant of bail does not appear to infringe Article 5(4).[93] Quite independently of compliance with the Convention, it seems to me sensible, in general, to restrict a defendant's right of appeal against conditional grant of bail. Otherwise the appellate process could be corrupted by endless wrangling over conditions that in most cases should be manageable for the defendant. There are two possible exceptions in the case of conditional bail granted in the magistrates' courts. The first is where he cannot comply with a condition of residence away from the area of the alleged offence or the home of a victim or witness and there is no suitable bail hostel placement. The second is a requirement to provide sureties or to give a security. In my view, there is a strong case in those instances for allowing an appeal from magistrates or a district judge to the Crown Division of a new unified Criminal Court (Crown Court).

I recommend that defendants should have a right of appeal against conditional grants of bail from the Magistrates' Division (magistrates' courts) to the Crown Division (Crown Court) in respect of conditions imposed as to their residence away from home and/or to the provision of a surety or sureties or the giving of security.

Prosecution appeals

89 There is also an issue about the prosecution right of appeal against the grant of bail. It has a limited right of appeal to the Crown Court against magistrates' grant of bail, but not against any attached conditions. The Bail (Amendment) Act 1993[94] confers a right of appeal only where the alleged offence is punishable with imprisonment for five years or more or is an offence of taking a vehicle without authority or of aggravated vehicle taking. And there are strict procedural safeguards to control the exercise of the right.[95] In addition, the Crown Prosecution Service's internal guidance for prosecutors urges them to do so "judiciously and responsibly" and only in cases of "grave concern". As is plain, the number of cases in which the prosecution may appeal are relatively small, and it has exercised the right in very few cases.

90 Given the difficulty for magistrates and judges deciding the matter at first instance of assessing the risk of (further) offending by those to whom they grant bail and to the potentially enormous damage to the public if they get it wrong, there is a strong case for removing the high threshold for prosecution appeals. Why, in any event, should it be limited to offences attracting custodial sentences of five years or more if the Service's criterion is 'grave concern'? And, if the test is to be one of 'grave concern', or something like it, it does not follow that the yardstick should be the seriousness of the offence, at whatever level that is pitched. Widespread or day-to-day commission of relatively less serious crimes justify similar provision. Some may amount to what are called in North America, 'quality of life' crimes and, regardless of their individual seriousness, can have a powerful impact on the local community's sense of security. In my view, the right should be extended to all cases that may attract custodial or part custodial sentences, subject to the same or similar procedural safeguards as those provided in the 1993 Act and guidance to prosecutors that it is to be used with great care and only in exceptional cases.

I recommend that the prosecution should have a right of appeal to the Crown Division (Crown Court) against the grant of bail by the Magistrates' Division (magistrates' courts) in respect of all offences that would, on conviction, be punishable by a custodial, or partly custodial sentence.

 

ADVANCE INDICATION OF SENTENCE

91 I have called this section 'Advance indication of sentence' to underline its d