I would like to share my recent experience of the Criminal Procedure Rules (CrimPR) danced to the tune of Ministry of Justice training. Acting for a defendant who had no recollection of the incident, or what he had said in interview, I was faced with a single statement and a police officer’s limited summary of a portion of the interview as disclosure on the first day.
Not everything in the statement was agreed as correct by the defendant and he wanted to know exactly what he had said in full before accepting he had done anything wrong. Therefore, the case management hearing (CMH) form was completed as putting the prosecution to proof and indicating that the defendant would not be giving evidence. The court was advised that no adjournment was sought and we could proceed to set a date for a short trial with one witness.
Despite the final paragraphs of Rochford and the article in your issue of 18 October 2012 by an advocate for the CrimPR recognising this as an acceptable option, the court was not having it. I was subjected to a barrage of questions seeking the exact issues that were not agreed and what the exact nature of the defendant’s defence was. I was also accused of not assisting in progressing the case with reference to both the obligations under rule 3(2) and the fact that criminal justice was not a game.
Both of these assertions are starting to become irksome. If anyone thinks that I go to court for nothing more than my own amusement, they are sorely mistaken. I do not treat the criminal justice process as a game and have never done so. My professional obligations towards the best interests of my client within the parameters of the law do not allow me to do so. The use of this phrase by clerks and courts is verging on the offensive, not only because it is being used as a stick to beat defence solicitors with, but also for what follows.
The reliance on rule 3(2) suffers a material absence. The opening words of rule 3(2) are that: ‘The court must further the overriding objective ...’. One of the overriding objectives is to recognise the rights of the defendant, particularly those under article 6. This confirms the cornerstone of English law that everyone charged with a criminal offence shall be presumed innocent until proved guilty – still part of the law despite serious attempts to erode it. By way of emphasis, the defendant is presumed innocent and the charge against him must be proved. This is something that the court must promote under its rule 3(2) obligations; rather than try to circumvent by the selective application of a few choice provisions.
In this regard, an argument is put forward that one of the overriding objectives is to convict the guilty. I would say that this is a disingenuous argument. The only time a defendant is guilty is upon conviction. Conviction is only the result of either a plea of guilty or the charge being proved. Until that time, he is presumed innocent. Therefore, the rules can surely not have been designed as an administrative exercise to convict the not guilty (innocent), and the overriding objective has to be read carefully against the larger picture of the basic principles of fairness and correct procedure which underpin the criminal justice process.
H D Kehler, DB Law, Camborne