Stop Delaying Justice! is coming into practice in magistrates’ courts across England and Wales this month. This is an initiative led by the judiciary in the magistrates’ courts, with judges and magistrates working together. The intention is that contested trials will be fully case-managed at the first hearing and take place at the first listed trial hearing, or not at all. The programme emphasises the unfairness to innocent defendants, as well as victims and witnesses, and justice itself when cases are adjourned and delayed.

Starting in September last year, ­seminars have taken place across the country for magistrates, district judges (magistrates’ courts), legal advisers and some defence and prosecution lawyers who regularly practise in magistrates’ courts. The seminars consist of a DVD with 16 typical scenes and accompanying paperwork that explains the law. Almost all the scenes are based on recently decided cases in the Administrative Court, the Criminal Procedure Rules and protocols issued by previous senior presiding judges.

As one commentator has said, there is nothing new in the initiative. Even so the content of the programme has been a surprise to some. The changes in practice in the magistrates’ courts since the CPR were introduced in 2005 have been profound, yet not uniformly put into practice. Most recent, for example, is the introduction of a six-page case management form in October 2010, and a number of Administrative Court cases on privilege and self-incrimination. In short, parties must complete the form. This does not breach legal professional privilege. The court has a duty actively to case-manage.

Since the programme is based on recent case law and protocols we were confident that the examples given in the DVD properly reflect current law and practice. Moreover, the materials went through a rigorous vetting process. The material has now been seen by perhaps 10,000 people – and no significant mistakes have been pointed out.

It is important to remember that Stop Delaying Justice! is not Judicial College training material. There are at least two major differences. The first is that this is not a ‘best practice’ DVD. The scenarios are vehicles for explaining current law in a way that would probably not be replicated in court. The script was designed to explain the law in reasonably simple terms and to show the court reaching the right decision. However, in some cases, the way the explanations are given would be different in practice.

The second substantial difference is that this DVD and supporting material has been used for seminars for all those who practise in magistrates’ courts, whether or not they normally have the benefit of Judicial College training. For the first time, defence solicitors have access to the same material as the judiciary. It will be interesting to see whether this approach is welcome.

I have already said that we are confident that the law is accurately and correctly stated, particularly in the written supporting materials. Those materials are accessible through CrimeLine, the London Criminal Court Solicitors Association and Anthony Edwards. Defence lawyers will want to form their own view of the accuracy and fairness of the approach, and of course will not do so without having carefully considered all the evidence. The DVD takes about an hour to view, and the written material will probably take rather longer to assimilate, particularly if the principles are not already clear, or if the reader wants to look at the originals, including the protocols and case reports, as well. That material makes it clear that the central element in the process is fairness. There are also papers written specifically with Crown prosecution lawyers and defence lawyers in mind. There is a paper on privilege. The legal justification for the scenarios is set out in some detail.

However, the process has only just begun. We remain anxious to engage with all who work in the magistrates’ court and to improve the system in so far as this is practicable. We welcome feedback. In this article, I am openly inviting you to suggest improvements to the programme.

Many practising lawyers have attended the seminars or had access to the material in another way. Although a wide level of support has been reported from across the country, defence lawyers in particular have expressed some concerns. I will mention some of those concerns here.

1. Legal aid. When we started to develop this programme, there was concern about delays in granting legal aid in some parts of the country. It was obvious that unless there were improvements to the assessment of legal aid then Stop! would be less effective than it might otherwise be.

We therefore discussed this with Her Majesty’s Courts and Tribunals Service and the Legal Services Commission to see whether the situation could be improved. I am very grateful to both organisations for understanding the problems and working to improve the situation. The figures show that towards the end of last year there was a real improvement in the timeliness for considering legal aid applications. For example, in England and Wales in November over 90% of legal aid applications were processed within two days and over 97% within six. This is an improvement in each category of well over 10% since June last year.

We all know that there will remain cases where, at first hearing, the defendant does not have the advantage of a representation order or private representation. Some defendants choose not to be represented. Others are not eligible for legal aid and decide not to pay privately. The courts are used to dealing with unrepresented defendants. In appropriate cases, a plea of guilty will be explored to ensure that it has been properly entered. This is a responsibility that magistrates and legal advisers understand very well.

However, what about the position where a defendant’s legal aid application has not yet been determined? We would prefer that not to be the case. But we are also aware that a plea must be taken at the first hearing (Essential Case Management: Applying the Criminal Procedure Rules, Leveson LJ, December 2009, copied in the written material). If the defendant is unrepresented we will do our best to case-manage.

Of course, we would prefer a lawyer to be present to assist. Apart from anything else, that is a far more efficient use of court time. It is very well understood that a lawyer cannot be expected to attend court if adequate payment is not guaranteed. I understand that if you do attend and legal aid is granted later, the order will be back-dated to the time when the application was stamped as received by the court. In other cases there may be an entitlement to pre-order cover (one hour’s work) or early cover (£75 plus VAT, see pp 156-157 of the Criminal Legal Aid Manual).

2. Privilege. It is not a breach of legal professional privilege to complete the case management form showing fully how the case is to be contested and the matters in dispute. A paper on privilege is available.

3. Section 114 of the CJA 2003. In the paperwork the prospect is raised of a defendant requiring a witness to attend court, without identifying any area of dispute or showing any good reason why the statement cannot be read. There may be occasions when the court will rule admissible the witness’s statement under section 114. The case law supporting that proposition is included in the materials. Frankly, I do not expect this to happen in practice. That is because I expect lawyers and defendants to be able to explain to the court why it is necessary for the witness to attend.

4. Insufficient evidence. You will see from the written materials that it was recognised at an early stage that there are significant advantages if the Crown provides adequate papers at the first hearing. The protocol on agreed papers is in the Stop! material so that you can access it readily. The director of public prosecutions has been supportive of this initiative. He and his staff will be monitoring the position, particularly where there are regular complaints about insufficient material being provided. Having said that, the court will still attempt to make as much progress as it can with whatever paperwork has been provided. You will also be aware of the proposal, already being piloted in some areas, whereby prosecution papers are to be supplied ­electronically.

5. A scene in the DVD explains discount for guilty plea and shows the bench warning a defendant that he may be liable to £4,000 costs. Some think this shows undue pressure on the defendant to plead guilty. Undue pressure is unacceptable. I don’t think the boundary is crossed in this scenario because the defendant accepts the court’s invitation to obtain further advice before entering a plea. But even if you disagree with the style, the purpose is to remind a judge or magistrate of the obligation to explain these matters to an unrepresented defendant. The script mentions £4,000, but in reality it is more complicated than that, of course.

6. One scene shows a court considering wasted costs against a lawyer who took an ambush point. Personally, I would not want to see a lawyer facing wasted costs, which is why it is so important to remind lawyers of the problems they may face if they fail to comply with their responsibilities as set out in the Law Society Practice Note of December 2009, and elsewhere. The paperwork says this is a draconian step and does not encourage courts to make such orders.

To summarise: the law behind the initiative is settled. Adjournments are normally unfair. There are always exceptions in the interests of justice, but they should be rare. Please join the debate, but only once you have viewed and read all the material.

  • Feedback on ‘Stop Delaying Justice!’ should be sent in the first instance to the Gazette(eduardo.reyes@lawsociety.org.uk). Senior District Judge Riddle has agreed to write a ­follow-up article responding to ­readers’ views