The speed of fight

The Narey report and the scheme it inspired are designed to move serious criminal trials more quickly through the courts.

Jon Robins reports

It is not often that you find criminal defence lawyers short on strong opinions when it comes to the subject of government reforms of the justice system.

But apparently they were unmoved by - or as the Home Office put it, 'responded neutrally' to - a new initiative to speed up the progress of indictable-only offences through the criminal courts.The scheme originally comes from the Prison Service chief Martin Narey's Review of Delay in the Criminal Justice System (February 1997) report and proposes fast-track measures enabling the Crown Court to take on the management of more serious cases at an earlier stage.

Last month, the government announced that it is to be implemented nationally from the beginning of 2001.According to a report into pilots of the reforms by accountants Ernst & Young, the 'indictable-only' initiative will slash the average time from charge to plea hearing by a third and save the tax payer 15.7 million in the process.The accountants report that the judiciary, the Bar and the Crown Prosecution Service (CPS) have all welcomed the benefits reaped in the six areas that piloted the scheme between October 1998 and March 1999.

The only resistance has come from those with the task of representing their clients in police stations and courts.

Other Narey measures, such as the introduction of early hearings and the location of CPS staff in police stations, were implemented nationally at the end of last year.

Malcolm Fowler, chairman of the Law Society's criminal law committee, is not sure what to make of the accusation of neutrality.

'I think neutral implies we have been supine and we're certainly not,' he says.

In fact, he says the Law Society supports in principle the benefits of introducing indictable-only cases into the Crown Court, but he adds that there are concerns.Mark Haslam, vice-president of the London Criminal Courts Solicitors Association, is more forthright.

He says it is an insult to describe the active input of solicitors into the pilots as neutral.

He explains: 'We've no problem in improving the efficiency of the system and we've no problem in being accountable, because legal aid is public money.'When Home Office minister Charles Clarke announced last month that Narey measures were to be rolled out nationally, he explained that they formed part of the government drive to modernise the justice system: 'This will enable magistrates' courts to have more time to deal with their other cases and the Crown Court to focus on delivering swifter punishment to the guilty and justice to the innocent.'From January next year, indictable-only cases will have an initial magistrates' court hearing to look at bail and legal aid and then they will be sent on to the Crown Court for a new 'preliminary' hearing under strict deadlines - for example, eight days when a defendant is in custody.

Committal proceedings will be scrapped but defendants who wish to challenge evidence will be able to make an 'application for dismissal' to the Crown Court judge.Ernst & Young reports that the initiative reduced the average time between charge and completion in custody cases from 172 calendar days to 141, and in bail cases from 228 to 194.

Average time between charge and plea and directions hearing fell from 112 days to 79 in custody hearings and from 148 days to 92 in bail hearings.

The average number of magistrates' court hearings in the pilot was 1.4 compared to 4.6 before the pilots were introduced.According to the report, the judiciary, despite initial misgivings, 'commented favourably' on the pilots and the Bar 'welcomed' moving cases quickly to the Crown Court.

Lawyers in the CPS were also happy.

A spokesman says the pilots led to 'considerable savings in time and effort' as well as cutting down on delays for the victims and witnesses of crime, but there were other benefits.

'A single CPS lawyer is able to take ownership of a case throughout its life, thus ensuring a consistent approach,' says the spokesman.So why do the defence solicitors have a problem with the reforms? They place unreasonable pressure on the defence, argues Derek Johashen, a partner at the Bedford office of Pictons who has experience of the Northamptonshire pilot.

'We're expected at a moment's notice to be able to assimilate the information contained in advanced disclosure papers, advise the client and then mitigate, all in the same day,' he says.The situation is compounded by a lack of information from the police and the CPS.

'The prosecution refuse to give us anything over and above what's contained in the police disclosure even though they have more on their files and we have problems taking full instructions,' he says.John Williams, head of criminal law at Ormerods and a member of the steering group for the Croydon pilot in south London, also complains of the pressure on defence work.

He argues that it does not serve the interests of justice for solicitors to have only two weeks to prepare serious cases compared with a couple of months.

'It puts a lot more pressure on our clients and us to try and sort things out quickly,' he says.Mr Williams illustrates his point with a recent grievous bodily harm case where his client, an elderly alcoholic, was attacked by another alcoholic in a local park.

Expert evidence was provided by the prosecution relating to blood-splatter at the last minute, leaving little time to prepare a defence.

In that case, the firm did instruct an expert whose evidence discredited the prosecution's argument.

'It was all very last minute,' he adds.Both Mark Haslam and Derek Johashen suspect that the emphasis on speed in the latest Narey reform could clash with the Human Rights Act 1998 scheduled to come into force in October this year.

Mr Haslam is particularly concerned about its impact on substantial fraud cases.

He reckons that the police could have up to three years to investigate a fraud and then 'all off a sudden' they will charge a defendant with conspiracy.

'I am absolutely certain that it will fall foul of the European legislation because there must be a degree of equality of arms,' he says.John Greenwood is a member of the steering group of the Blackburn and Burnley pilot and a partner at Steele Greenwood.

He reports that the majority of the Narey measures work well with the exception of the indictable-only scheme.

In particular, he describes the new preliminary hearing at the Crown Court as 'a complete and utter waste of everyone's time'.

He says it is 'just a directions hearing' which passes delays on from the magistrates' to the Crown Court.

Mr Greenwood points out that defence solicitors work 'day in, day out' at the magistrates' court, but now they are expected to be in two courts at the same time.Both the Law Society and the Criminal Law Solicitors Association (CLSA) argue that defendants stand to lose out on entitlement to bail.

Malcolm Fowler explains that there are two separate opportunities to make a representation for bail - before the custody officer and later a 'more meaningful' application can be made in front of magistrates.

Fast-track procedures mean that the accused would lose a second opportunity.

According to Mr Fowler, a concession was arrived at in the pilots allowing for a second hearing, but it remains to be seen whether that will be available nationally.Franklin Sinclair, chairman of the CLSA, reckons that fewer clients will receive bail from magistrates 'because they know they are in the Crown Court next week'.

In the meantime, they will wait in custody for the case to go to the Crown Court.A Home Office spokesman said this was the first time these objections had been raised on the indictable-only initiative, adding that the Law Society had made no such comments on the pilot projects.

He repeated the line from the Ernst & Young report that defence solicitors had responded 'neutrally' to the plan.What is puzzling all defence solicitors is how the accountants figure there is such a huge saving to be made.

Mr Haslam recently accused the government of living in 'cloud cuckoo land'.

He argues: 'The bottom line is that a big case is going to have to be prosecuted and defended and a certain amount of work will have to be done at some stage.' The figure of 15.7 million fails to take into account there will have to considerable investment to make the system work, he adds.

'You don't get nothing for nothing in this world.'John Williams points out that the Ernst & Young calculation omits the likely increase in defence as work is passed onto the Crown Court.

'Is it really cost-effective to have Crown Court judges and barristers managing cases, as opposed to lay magistrates, the CPS and defence solicitors dealing with the committal issue in the early stages?' he asks.The clear message from solicitors operating under the new indictable-only fast-track, such as Derek Johashen, is far from 'neutral'.

'We want the opportunity to do a good job for our clients and so much depends on that - they could end up receiving a custodial sentence,' he says.

'We want to give them the opportunity to be defended properly, and Narey doesn't help at all.'

Jon Robins is a freelance journalist