In February 2016, “Transforming Summary Justice: An early perspective of the CPS contribution” was released. It was the long awaited appraisal of a program which had run since May 2015. The aim was to reduce delays in the magistrates’ courts, ensure fewer hearings are held per case, and increase the number of trials proceeding after first listing.
By Kate McMahon, Partner & Caroline Karlsson, Paralegal
The program is loftily entitled “Transforming Summary Justice”. Well, did it?
The TSJ program has ten characteristics which, in concert, are expected to improve the efficiency and effectiveness of the magistrates’ courts.
The ten characteristics are:
- Quality assured police files;
- Anticipated plea hearings;
- Brigading cases;
- Optimum bailing patterns;
- Early receipt of IDPC (initial details of the prosecution case);
- The right personnel at the hearing;
- Streamlined disclosure;
- Clear expectations of effectiveness;
- Police support for anticipated not guilty hearings; and
- Connectivity (WiFi) for each agency at court.
Sadly, it appears as if a mix of the police and the CPS’s failure to comply with the TSJ undermines its objectives and prevents a substantive number of cases of going ahead at the first trial.
Inspection File sample
The inspectors examined 271 files to assess compliance with the ten characteristics and file compliance. 180 of these files were selected from 9 Areas which the inspectors did not visit. For these Areas the inspectors looked at 20 cases, consisting of 15 not guilty pleas and five anticipated guilty pleas. The remaining 91 files were spread across the Areas that the inspectors visited (Para 5.1).
Initial file review and lawyer allocation
The inspectors stated that the police do not always follow the optimum bailing patterns, one of the characteristic set out by the TSJ. However, despite the police failure to adhere to the optimum bailing patterns, the police often deliver files early giving the CPS on average 16,3 days to review and prepare a case prior to the first hearing. (Para 5.6). The police examined and submitted files on time to the CPS in 67% of the cases reviewed and the file was delivered 13.1 days prior to the first hearing (Para 4.7). However, less than half (42.8%) of the files delivered by the police complied with the National File Standard (‘NFS’) and of the NGAP (Not Guilty Anticipated Plea) only 31.7% complied with the NFS (Para 4.14). This inevitably affected the outcome at court and in 78.3 % of the cases with an unsuccessful outcome the police had not included what they should have (Para 4.14). Moreover, the CPS failed to address the failings in quality of the police files (Para 1.19).
Pursuant to TSJ initatives, it is a requirement that all NGAP cases should be allocated to a lawyer. However, the inspectors found that only 54.7% were allocated to a “named individual” (Para 5.7). Furthermore, when the file had been allocated to an individual the inspectors found that it rarely stayed with that individual until finalisation (Para 5.9). Moreover, the inspectors found that it was unclear what was expected of the allocated lawyers regarding review of cases, that there was no guidance and that senior CPS staff could not explain was what expected (Para 5.9).
Consequently, in 37.7% of cases there was no evidence that a review had been completed before the first hearing. It was only in 38.8% of the cases that the review obligations were fully met. [For a complete breakdown of fully met, partially met, not met and not done and a division into all cases, GAP cases and NGAP cases, see bottom of page 41.] The lack of review meant that several cases were not able to proceed to the first hearing and in total 22% of the first hearings that did not proceed were due to CPS’ failure to conduct a case review (Paras 5.12-5.13). The failure to review a case also often caused late service of the bundle, impacting on the defence ability to prepare prior to the first hearing, consequently, further preventing the first trial to go ahead.
To resolve this issue the inspector advised that the CPS use a standard form with a review box which prompts the advocate to evidence their review (Para 5.15). The NGAP cases should be reviewed sufficiently to ensure effective case management (Para 5.16).
Disclosure of unused material
A further concern was the failure to disclose unused material to the defence in a timely manner. The introduction of revised disclosure forms for use in magistrates’ courts have created issues for the police and the CPS in relation to complying with their disclosure obligations, which are poor and needs improvement (Para. 1.20). For example the police complied with disclosure in 61.5% and in the NGAP cases the compliance was only 51%. In fact, police officers reported that the introductions of new forms “had caused even more confusion” and that “the new system did not simply work” (Para 4.34-4.35). The inspector highlighted that saving time cannot “take precedence over the need for officers to understand their disclosure duties and convey the information about the unused material to the CPS” (Para 4.37).
Regarding the CPS’s disclosure compliance the inspector found that the “the CPS performance were even more disappointing” [than the police]. In fact, the inspector found that “in far too many cases inspectors encountered a complete failure to deal with disclosure.” The CPS complied with its duties of disclosure in 34.8% of the cases; they partially complied in 22.5% and failed to comply with its duties in 42.7%. Common issues included failure to sign, or endorse the Streamlined Disclosure Certificates, failing to challenge the police when inadequate disclosure was provided and serving poorly prepared certificates (Para 5.25). This problem was further exacerbated by a general failure to keep records and only in 35.8% was a disclosure record sheet completed (Para 5.26). This undermines the collaboration between the prosecution and the defence which can ensure that trial proceeds efficiently (Para 5.29).
Early receipt of initial details of the prosecution case
To ensure an efficient hearing, the materials must be served upon the defence to allow adequate opportunity to prepare. The CPS should provide documents a minimum of five days prior to the hearing (Para 5.28). The inspectors found that service on the defence was particularly poor even when the defence details were known. In fact the papers were only served upon the defence ahead of the hearing in 16.7% of the cases (Para 5.29, for detailed schedule see Page. 45). The inspectors found that the main reasons to be late review of the file by the CPS lawyers and late bundling of the material for service (Para 5.35). Moreover, in the 43.8% of the cases where service of the bundle was late, it was late because of the failure to undertake a review. Furthermore, defence representatives raised concerns such as failure to serve CCTV evidence, inadequate disclosure and inaccurate MG5 summaries and lack of statements available in GAP cases to enable defence counsel to better advise their clients (Para 7.30).
It seems that failing to comply with these obligations will always result in a failure to implement TSJ and a failure to improve the efficiency of magistrates’ courts. We are not sure we are in a much better position after review- for those of us in the criminal justice system, the review does not seem particularly transformative.