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November 6, 2016

Why don’t prosecutors pick up the phone to defence advocates?

“The system is overstretched and disjointed. About two-thirds of Crown Court trials are delayed or do not go ahead at all and only 55% of those who have been a witness say they would be prepared to do so again. These are damning statistics”.  Meg Hillier, Chair of the Public Accounts Committee June 2016.

Although reference is continually made to ‘the criminal justice system’… there is no such single system: rather, there are a series of criminal justice participants each of whom has their own obligations and priorities, and operates within their own financial constraints. The almost inevitable consequence of these participants each having to address their own issues is that they have little, or significantly less, regard to the needs and obligations of other participants”.

Last year, Lord Leveson suggested that efficiency in the criminal justice system would only be achieved if everyone shared the same goals and suggested a number of practice reforms to achieve this.  A programme to implement these reforms has been running all year, but its not clear that the culture of the courts has changed.

A cornerstone of the reforms is “better case management” or BCM.  This programme is aimed at improving the way criminal cases are processed by the system through robust case management, a reduced number of hearings, and maximum participation and engagement from all parties. The Lord Chief Justice said in his Annual Report, published this week, that “there are promising signs that this is making a significant contribution to the more efficient running of the courts”.

So far, so good.  But another new report from those who inspect the Crown Prosecution Service (CPS) tells a slightly different story.  It says that at roll out “there were no agreed measures of success”, which is not a great start.  The inspectors found progress faltering.

One of the principles of BCM is that the file for each case should be analysed early on, and a strategy for dealing with the case agreed.  But fewer than half the files had been checked properly and “there was very little direct engagement with the defence before the first hearing in the magistrates’ court; this took place in fewer than 10% of cases”.

What should the relationship between defence and prosecution be?  Most people who have visited a magistrates’ court have noticed how unfamiliar prosecutors sometimes seem with the detail of their cases.  And it is crystal clear that most have not talked to the defence in the days beforehand.  But BCM is supposed to have changed all that.  The two sides are now supposed to have talked in order to resolve queries etc before the hearing.

Why is it so hard to pick up the phone?  The report suggests that a “cultural shift” is required.  But it also might be useful for one side to know who the other is.  The police are supposed to write down the contact details of the defence solicitor, but in 50 out of 134 cases there were no contact details in the file.  The identity of the defence becomes obvious at the first hearing in the magistrates’ court but, even after that, prosecutors seemed reluctant to pick up the phone. In 40% of cases there was no conversation at all between prosecution and defence between the first hearing and the next.  In only a third of cases did the two sides discuss the nub of the case – what issues were disputed.

No wonder cases involve so many hearings, and so many seem almost pointless.  One problem is that those involved still don’t seem to have bought in to reasons for the reform – they can’t see what’s in it for them, though they know they need to tick certain boxes: “The current approach puts an emphasis on the process as opposed to what the process is meant to achieve, making the BCM, SOP and DCS processes an end in themselves”.

Reform is always difficult, but successful reform involves winning hearts and minds.  The frequent failure of prosecution to engage with the defence throughout the legal process, not just when they are in court, suggests that we are a long way from a system which is more than the sum of its parts, in which all participants understand and respond to the needs of other participants.   You can use hard motivators (targets/financial incentives) to get people to change their behaviour, but I think prosecutors are too beleaguered for that.  Nudge techniques might work better.  Or a campaign to explain why picking up the phone to the other side is worth it.