• Annex A: Criminal Courts Review Seminars - points made by participants

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Lord Justice Auld spent the first few months of the Review meeting as many people as possible, collecting information on current procedures and the main areas in need of change. He has taken advantage of his trips around the country to visit a number of local courts and agencies.

These have included:

• visiting the new, purpose-built Magistrates' Court in Nottingham;
• meeting the Chief Executive of Sefton Local Authority, to discuss local funding of magistrates' courts;
• sitting in on a meeting of the Thames Valley Area Criminal Justice Strategy Committee;
• sitting in on a meeting of the Merseyside Magistrates' Courts Committee;
• visiting the Youth Court in Kingston upon Thames;
• sitting in on a "Narey" hearing at Newcastle Crown Court;
• a demonstration of the remand TV link pilots at Bristol Magistrates' Court and Manchester Crown Court; and
• spending a day with the Kent Police, discussing their investigation methods and, in particular, the problems they meet when dealing with disclosure issues.

Lord Justice Auld has also met with many of the agencies and individuals who would be affected by any changes he may recommend. These have included:

• Circuit Judges, Stipendiary and Lay Magistrates;
• the Central Council of Magistrates' Courts' Committees;
• the Association of Justices' Chief Executives;
• the Justices' Clerks' Society;
• the Association of Chief Officers of Probation;
• senior officials in the Court Service, Lord Chancellor's Department, Home Office, the Crown Prosecution Service and the Serious Fraud Office;
• Judges from other jurisdictions, including Australia and the United States; and
• other individuals including Kit Chivers, the HMMCSI Chief Inspector, Keith Hellawell, Professor Michael Zander, and the twelve expert consultants to the review.

A number of other bodies have also held seminars and conferences during this period, which Lord Justice Auld has attended. These have included a conference on the Modernisation of Magistrates' Courts at Birmingham University, the Victim Support and Liberty Annual Conferences, the Thames Valley Police Restorative Justice Conference, and three seminars organised by Justice to discuss issues under consideration by the review, including the Human Rights Act and disclosure.

Lord Justice Auld has so far received over 750 written submissions from the major players in the United Kingdom and the main Commonwealth countries.

The Review Team arranged 20 seminars across the country, to allow some of those working in the criminal justice system at a local level, who Lord Justice Auld may not otherwise have met, the chance to contribute to the Review. The interesting discussions at these meetings, which took place in courts, universities and other local buildings, have proved to be a valuable source of information for Lord Justice Auld. You can find a note of some of the points made at them at Annex A.

Lord Justice Auld spent a week in Scotland during July, sitting in court and meeting some of those involved in the system. He intends to visit Northern Ireland, the United States and Canada later in the year.

He expects to submit his report by the end of the year.

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ANNEX A

CRIMINAL COURTS REVIEW SEMINARS
POINTS MADE BY PARTICIPANTS

• A Unified Criminal Justice System (CJS)?
• A Unified Court?
• Funding
• Lay/Stipendiary Magistrates
• Allocation of Work
• Juries
• Case Management
• Disclosure
• Trial Procedure
• Evidence
• Sentencing
• Witnesses
• Modern and Civilised Criminal Justice System
• Other Issues

Lord Justice Auld held a series of 20 seminars across the country during May and June. These seminars were attended by about 500 people, a mixture of professionals, representatives of the main criminal justice agencies, academics and other interested parties.

Views expressed on the main issues are summarised below.

A Unified Criminal Justice System (CJS)?

• A unified CJS could help to remove the anomalies in the current funding arrangements and conflicts in the system. The lack of local and central planning frequently meant that initiatives in one organisation had consequences elsewhere which were not planned or resourced.

• There were difficulties in CJS agencies not sharing common objectives. Currently targets worked against each other or were not replicated in other agencies.

• There was often conflict between the local groups imposed nationally and the local groupings formed to meet local needs. The numbers of such groupings needs to be reduced and rationalised.

• Inter-agency committees were toothless without budgetary responsibility. Defence advocates also needed to have a more active voice.

• There were constitutional difficulties with a single CJS organisation, and this would remove the checks and balances provided by the current system.

• The independence of the police and the CPS would need to be considered if a unified CJS was introduced.

• Administration of all CJS agencies should be managed on the lines of the 42 areas, so as to retain some degree of local accountability.

A Unified Court?

• A unified criminal court would result in a more efficient system, would reduce delays and would allow for shared expertise and good practice. The lack of a joint administration meant that much work was duplicated with consequent inefficiencies.

• A unified court would allow for cases to enter the system at the appropriate level.

• The highest tier of courts should be able to deal with all of the outstanding matters against a defendant.

• A unified court system would require a re-consideration of the role of MCCs.

• Consideration would have to be given to the hearing of appeals in a unified court.

• The need to combine administrations was questioned. It might be simpler just to unify the administration of the courts. Similarly, the need for all levels of the court to be housed in the same building was queried.

• Some felt that local justice was a crucial part of maintaining confidence in the CJS whilst others felt that the idea of local justice was now irrelevant. Centralisation would have to be balanced with local needs and demands.

• There was a need for properly defined IT support in administration; the agencies were currently developing IT systems in isolation. However, the problems in sharing information between the agencies needed to be resolved before any new IT systems were developed to do this more efficiently.

Funding

• The 80/20 funding arrangements for magistrates' courts were generally unworkable where there was more than one funding authority involved, causing problems in terms of securing agreement for funding and resource allocation. All funding should be provided centrally. Proper liaison, rather than funding, should preserve local involvement in the system.

• Closing local magistrates' courts did not necessarily result in savings for the system: there were more ineffective hearings and the need to travel further increased the expenses of all involved.

Lay/Stipendiary Magistrates

• The differences between lay and stipendiary magistrates should be recognised and reflected in different job descriptions.

• Magistrates' sentencing powers should be increased, with the jurisdiction of the courts expanded accordingly. This would reduce the number of cases unnecessarily sent to the Crown Court.

• Stipendiaries should be given a mixed bag of work, with complexity and length being the key factor.

• There may be a role for stipendiaries dealing with case management in either-way cases.

• It was suggested that stipendiaries should sit with lay magistrates on certain cases, possibly with enhanced jurisdiction. Concerns were raised about the effect this would have on the speed with which they dealt with cases.

• Lay magistrates provided a link between the judicial system and the local community. Their part-time nature helped them keep in touch with real life and increases public confidence in the system.

• Consideration should be given to the role of Justices' Clerks in dealing with matters of law and admissibility in the absence of the magistrates.

Allocation of Work

• The correct criteria for allocation should be the seriousness and complexity of the whole case.

• There should be more flexibility to divert cases to the nearest court with the appropriate facilities.

• Judicial itineraries should be more flexible, to allow judges to move to the work.

• TV licensing and other non-criminal work should be removed from the courts.

• Specialist courts, following the example of the Drug Testing and Treatment Order pilots, were worth consideration.

Juries

• Juries should be more representative of society. The exemption rules needed to be reviewed and excusals should be less easily granted.

• Jurors should be properly recompensed for attending court.

• Is there a need to have 12 jurors in every case? Defendants may have concerns about this, but could be offered the options at the start of the trial. Jury waiver could be an option in indictable cases. Election for professional tribunal might be particularly useful in fraud cases.

• Consideration should be given to using standby jurors. This should help to ensure continuity and less disruption than is presently the case.

• There were divided views on research: on the one hand, jurors were the last truly independent feature of the CJS and should be retained as such. On the other, research was a good thing in principle, and lessons could be learnt on the better presentation of evidence. Victims might also be interested in the reasons why juries did not convict in certain cases.

• More written evidence for juries would be helpful.

• Jurors may benefit from structured lists of questions, which would have to be agreed by counsel before the trial. This could also help to meet any requirement for them to produce reasoned decisions following the implementation of the Human Rights Act.

Case Management

• Oral PDHs provided focus and direction. They should not be necessary in simple cases, but should be expanded in other cases.

• Ring-fencing trials could help to speed up the process in some instances.

• To ensure proper case management, judges had to have the power to impose effective sanctions, although this essentially amounted to moving money between agencies. Incentives, possibly through enhanced payments, were likely to be more productive.

• There were currently no incentives for early preparation. Front-loading fees and/or advance indication of sentence, should be considered, and higher payments for PDHs may encourage trial counsel to attend.

• PDHs were often too early to identify which witnesses were required at the trial. A later pre-trial hearing might help in staggering witnesses during the day.

• In magistrates' courts, clerks or stipendiaries were best placed to deal with case management.

• One unique reference number should be used throughout the case.

• Defendants should not be penalised for early guilty pleas by losing remand privileges.

• Much time was wasted preparing cases that were eventually dealt with as a guilty plea.

Disclosure

• The provisions in the CPIA were not working. Primary disclosure took considerable amount of police/CPS time. Defence statements were not serving the desired purpose. Judges were often prevented from using the provisions available to them as they were not triggered properly by the parties.

• The role of the police as evidence collectors, rather than prosecutors, meant that they do not all have the necessary skills to know what should be disclosed to the defence.

• The best sanctions for inadequate defence statements were withholding secondary disclosure and allowing the jury to draw adverse inferences.

• It was recognised that solicitors could not always obtain sufficient instructions from their clients to complete a defence statement within the time limits.

• Third-party disclosure needed to be improved.

Trial Procedure

• There should be a single, comprehensive and simply-expressed code of procedure with, as far as appropriate, the same forms and methods of starting prosecutions, specifying offences etc.

• There would be more confidence in the system if there could be more certainty over trial listings.

• Oppressive cross-examination of witnesses can have an effect on confidence. This was a matter for the judge's discretion and control.

• Concerns were raised over the use of court appointed experts, although it was recognised that there could be advantages.

• Summing up of the evidence should not be necessary in all cases, although it was recognised that it could help to put two arguments side by side in a dispassionate way.

• Judges should not retire with juries. If they did, a record would have to be kept of the advice given, to be made available to the parties.

Evidence

• Evidence should not be a memory test. Witnesses should be allowed to refresh their memories from their statements whilst giving evidence.

• The use of witness statements as evidence would have to be agreed by both sides, and cross-examination would then have to take place. It was important for jurors/magistrates to see the demeanour and reactions of witnesses in court.

• Video-link evidence should be an option for all witnesses, particularly if it means they do not have to attend court. Practical difficulties and costs were noted, as were reservations about the use of links rather than live evidence.

• Consideration should be given to trusting juries/magistrates more on issues such as hearsay and previous convictions.

Sentencing

• Sentencing should be, as a matter of practice, undertaken by the trial bench/judge.

• Prosecution counsel should be able to refute, if appropriate, points raised in mitigation.

• The court should meet compensation awards and then claim back from the defendant.

• Advance indication of sentence schemes and formal discounts for pleas would encourage more guilty pleas.

• Diversion schemes where advocates agree appropriate reparation without the need for a court hearing should be encouraged. There should be a role for the victim and effective monitoring and enforcement.

Witnesses

• Responsibility for witnesses was split throughout the agencies. It was therefore difficult to ensure that needs were properly met and resources were allocated.

• The main problem for witnesses was lack of information on the progress of the case and their roles and responsibilities.

• Witness warning arrangements could be made more efficient in some areas. Witnesses were often reluctant to attend court if previous hearings had been ineffective.

• Prosecutions often failed because of intimidation of the main witnesses. Little was done to help scared witnesses through the process.

• Consideration should be given to increasing the role of the victim in proceedings. Should we adopt the "partie civile" system or should they be part of the prosecution team?

Modern and Civilised Criminal Justice System

• Public lack confidence in the system because of lack of information and knowledge.

• Court dress:

  • Some felt that wigs for judges provided dignity, respect and authority, and should remain. Others felt that court dress was outdated and should be swept away. Defendants do find it hard to differentiate between counsel in court and it adds to a feeling of a private club.

  • There should not be any disparity between counsel and solicitor advocates.

  • When given the choice, child witnesses usually asked judges to keep their wigs on.

• There should be separate waiting areas for prosecution and defence witnesses.

• Witnesses could be provided with pagers to reduce long waiting times before giving evidence.

• Courts should tailor their language to ensure that all parties understood the procedures.

• The flow of new legislation should be slowed. Consolidation of criminal justice legislation would be a major improvement.

• There could be a place for evening/weekend courts in metropolitan areas.

Other issues

• The adversarial system was not the ideal system for dealing with child abuse cases. Little allowance was made for the way in which children remember, and they are not allowed to tell their story.

• Delays in prisoners arriving at court needed to be addressed.

• Oaths helped to bring a formality to proceedings, but they could be replaced by universal affirmation achieving the same effect.

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