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• Introduction
• Progress
• General approach
Main headings of the Review
• Management and funding of the criminal courts and the justice system, including the potential contribution of information technology:
• Structure of the courts system
• Composition of, and allocation of work among, courts
• Case management
• Procedure (pre-trial and trial)
• Procedure (trial)
• Evidence
• Modern and civilised criminal justice in which the public can have confidence
• Sentencing (the mechanics of)
• Appeals
Introduction
On 14th December 1999 Sir Robin Auld was appointed to review the working of the Criminal Courts and to report by the end of this year, which he expects to do. On 27th March 2000 the Lord Chancellor appointed 11 consultants to the Review, namely:
- Sir Peter Crane, a High Court Judge;
- Jane Hickman, a solicitor;
- David Phillips, the Chief Constable of Kent and this year's Chairman of the Criminal Committee of the Association of Chief Police Officers;
- Judge Christopher Pitchers, a Circuit Judge;
- Andrew Prickett, former Chief Crown Prosecutor;
- Dame Helen Reeves, the Chief Executive of Victim Support;
- John Spencer, Professor of Law, Cambridge University;
- Lord Stevenson, Chairman of Pearson plc;
- Richard Susskind, Information Adviser to the Lord Chief Justice;
- Beverley Thompson, Director, Criminal Justice and Equality Issues, NACRO; and
- Rosemary Thomson, the former Chairwoman of the Magistrates' Association.
Sir Robin has interpreted his terms of reference as including, but not as necessarily limited to, the following headings:
the structure and organisation of, and distribution of work between, courts; their composition, including the use of juries and of lay and stipendiary magistrates; case management, procedure and evidence (including the use of information technology); service to and treatment of all those who use or have to attend criminal courts or who are the subject of their proceedings; liaison between the courts and agencies involved in the criminal justice system; management and funding of the system; and the organisation and procedures of the CACD.
Progress
Sir Robin has consulted widely and will continue to do so. He has sought views under the above headings:
by writing to over 1,000 individuals and organisations in this and other Commonwealth countries and in the USA; by placing advertisements in national, local, professional and ethnic press and other publications; on this web-site; and by an intensive programme of meetings with various individuals and bodies, which he will continue, including discussions with leading European judges and jurists.
So far, he has received about 650 written submissions and also much valuable comparative material from Commonwealth countries. In addition, in May and June he will conduct 20 Review Seminars at major court centres or Universities in England and Wales, to each of which he has invited 20-25 persons. They include representatives of local criminal justice agencies, leading academics and others experienced in the field, and also some private individuals with different exposure to the system who have made submissions to the Review.
In July, he intends to visit Scotland and Northern Ireland to observe and to discuss their systems with judges, prosecutors, administrators and others. In early October he may also wish to visit a number of criminal courts in the United States. He hopes to have the benefit of a number of current or projected projects of the Law Commission, of academic and other research and of pilot studies and data collection by the Court Service. He will also take into account recent and current initiatives within government, notably those concerning overall planning, management and funding of the criminal justice system, case management, diversity, information and communications technology, witness and victim care and youth justice. In doing so, he will not duplicate those initiatives, but will consider whether and, if so, how they support or conflict with his possible candidates for reform.
General approach
Sir Robin's general approach has been to explore under the above main headings whether there is a need for change and, if so, what change. In that exercise he is examining the potential for significant improvements that could flow from a re-shaping of the system by structural and/or jurisdictional change and by information technology. He also has in mind the increasing public expectations of the system. Although the Review is of the criminal courts and not of the criminal justice system, it is plain from its terms of reference that it goes beyond the workings of the criminal courts. They are the focal point of the criminal justice system and share and inter-act with its various agencies in the provision of the administration of justice. They also work alongside civil and family courts, often sharing their judges and administrative staffs. There are also difficulties in keeping within the often ill-defined boundary between procedural and substantive law - in particular, in relation to evidence, where Sir Robin is proceeding cautiously. Changes to the fundamental rights and duties of parties to criminal proceedings are not within his remit. When he reports he will suggest which of his recommendations are, in his view, capable of early implementation, for example because they would not be costly and/or would not depend on controversial legislation and/or would not unduly strain present structures and procedures. As to recommendations for change that would take a longer time, he will suggest the manner and stages by which it could be achieved.
Main headings of the Review
The main headings of the Review (and the main issues under each), as Sir Robin sees them now, are:
Management and funding of the criminal courts and the justice system, including the potential contribution of information technology:
Should the working of the criminal courts and the criminal justice system of which they form the focal part continue to depend solely on liaison and co-operation between different agencies and, if so, what, if any changes would improve it? If not, what should replace it? For example, should there be a single body with executive and financial responsibility for planning and running the system? What long term and short/medium term provision should be made for the establishment and operation of a common form of information technology to serve the courts and criminal justice system generally? And how would such technology complement that proposed for civil justice? How might information technology not only improve existing procedures, but also re-shape the system and change the ways in which courts work?
Structure of the courts system
Should the present dual structure of the Crown Court and Magistrates' Courts continue or should there be a single criminal court system covering all levels of offences in which Judges and Magistrates would all be judges of the court at their different levels, supported by a common administration and, eventually, housed in the same court buildings? If the present dual structure is to continue, should it have a common administration? In any event, what, in the short and long term, will be a sufficient and efficient provision and distribution of criminal court buildings and their administrative supports?
Composition of, and allocation of work among, courts
Does the present system of appointment of full-time and part-time judges at Crown Court level adequately match judicial skills to the types and volumes of work to be tried? If not, how can it be improved? Is the present system of allocation of work among High Court and Crown Court Judges sufficiently flexible to make the most efficient use of them all? If not, how could that be achieved whilst ensuring a proper match of judge to case? What, if any, changes should be made in the composition of juries, the types of cases tried by them and the manner of jury trial? Should all cases destined for trial by jury start in the Crown Court, thus removing what remains of the magistrates' committal for trial role? Who should try lesser cases, whether in the present form of summary justice or otherwise, Lay or Stipendiary Magistrates or both, and, if both, how should the work be allocated between them? If Magistrates' Courts are to remain separate from the Crown Court and are to include Lay Magistrates, is the present system of Magistrates' Courts Committees an efficient way to administer them? Should more use be made of specialist courts? Should courts sit for longer hours and, where there is a need, in the evening and at weekends?
Case management
What can be done to enable, encourage and, if necessary, compel parties and their representatives to identify early and adequately the issues for the court and to prepare quickly and effectively for its disposal by guilty plea or trial? How might information technology assist this? Should a more formal discounting system for early pleas be introduced and should plea-bargaining be permitted? What, if any, improvements can be made on the system of disclosure and treatment of claims of public interest immunity? What, if any, improvements could there be in the listing of cases?
Procedure (pre-trial and trial)
Whether or not the Crown Court and Magistrates' Courts continue as separate systems, should there be a single, comprehensive and simply expressed code of procedure with, so far as appropriate, the same forms and methods of starting prosecutions and specifying the offences charged? Who should decide where a case is to be tried?
Procedure (trial)
What can be done to simplify and modernise the process of trial and sentencing in the Crown Court and in Magistrates' Courts? What more can be done than at present to protect witnesses and defendants from oppressive cross-examination?
Evidence
Should there be greater use of written or visual evidence and a move away from technical rules of admissibility to consideration of the weight of evidence? Is the law as to the admissibility of evidence of similar offences satisfactory, both in its clarity and in its fairness? If not, what should be done about it? Is there a case for return to a requirement of independent supporting evidence in certain types of cases? If formal admissibility of evidence is to remain an important threshold for its reception, should evidence of recent complaint continue to be admissible and, if so, how could it made more comprehensible? What, if anything should be done about evidence, especially before a jury, of a defendant's bad character? What can be done to improve the assistance that experts can give criminal courts? What other candidates are there for the reform or improvement of the law of evidence - e.g. the evidence of children, the use and admissibility of computer generated or based evidence? Should there be a consolidation of legislation dealing with the criminal law of evidence or consideration of codification of the whole law of criminal evidence?
Modern and civilised criminal justice in which the public can have confidence
In what ways can the criminal courts better earn the confidence of the public?
Sentencing (the mechanics of)
What can be done to achieve more consistency in sentencing? Are the guidance of the Court of Appeal and that of the Magistrates' Association adequate? Will the proposed consolidation of statute law on sentencing be sufficient to simplify the task of the sentencer and those advising on sentence? Should there also be some codification of the law to include subsidiary legislation, practice directions and judicial guidance in reported cases? Should the prosecutor have a greater role in the sentencing process and on appeal? What can be done to improve the enforcement of fines and other monetary orders?
Appeals
Availability, routes and manner of appeal from Magistrates to the Crown Court and the High Court. Appeals from the Crown Court to the Court of Appeal, Criminal Division - its organisation, composition and procedures. The double jeopardy rule and prosecution appeals against acquittal and unduly lenient sentences.
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Progress Report - No 1
