STOP DELAYING JUSTICE!
Delegate Pack - September 2011
Part of the Lord Chief Justice’s Speech 6
DVD on Case Management – Supporting Materials (by scene) 8
Essential Case Management: Applying The Criminal Procedure Rules 24
Contents of Charging Reports and the National File Standard 26
Case Management and Fairness in the Magistrates’ Court 27
Case management and privilege 28
Credit for guilty plea in the absence of disclosure of the prosecution case 30
Why a defendant should cooperate with the case management process 32
Defence lawyers 33
What if? 34
Protocol for the Provision of Advance Information, Prosecution Evidence 39
and Disclosure of Unused Material in Magistrates’ Courts: A Summary
Protocol For The Provision Of Advance Information, Prosecution
Evidence And Disclosure Of Unused Material in the Magistrates’ Courts
Stop delaying justice! is an initiative led by the judiciary in the magistrates’ courts,
that is magistrates and district judges (magistrates’ courts) working together. We
have the full support of the Senior Presiding Judge, the Justices’ Clerks Society, the
Magistrates’ Association, the National Bench Chairmen’s Forum, the Director of
Public Prosecutions, Her Majesty’s Courts and Tribunals Service and the Judicial
College. We have also had assistance from other groups and agencies.
The aim is that all contested trials in the magistrates’ courts are fully case managed
at the first hearing and disposed of at the second hearing. That has been the
intention for some time. Now almost everything is in place to take this final step.
These materials have been prepared for the seminar programme that will begin in
autumn 2011. We expect implementation in the courts to begin in January 2012. We
are looking forward to working together cooperatively.
Goldring LJ (Senior Presiding Judge of England and Wales)
John Thornhill (Chairman, Magistrates Association)
Mike Walker (Chairman, National Bench Chairmen’s Forum)
Howard Riddle (Senior District Judge (Chief Magistrate))
Norman Draper (Chairman, Justices Clerks Society)
On 7 July 2011 the Lord Chief Justice delivered a speech entitled Summary Justice in
and Out of Court at Drapers Hall, London. Part of that speech is set out below. It
presents a challenge. Stop Delaying Justice! is the response of the judiciary in the
magistrates’ courts to that challenge. It is a joint initiative by the Magistrates’
Association, the National Bench Chairmen's Forum, and the Senior District Judge
(Chief Magistrate). It has the support of the Senior Presiding Judge, the Justices’
Clerks’ Society and funding from the Judicial College.
The first part of the challenge is for judges and magistrates to accept their
responsibility for delay. When a trial collapses, adjourns, or cracks, then very often
that could have been avoided had the case been properly case managed at the first
hearing. If the wrong charge was preferred, why did we not notice it? Why did we
not ensure that all agreed facts were clearly reduced to writing and only disputed
evidence called? Did we tolerate the provision of a streamlined bundle that did not
include key witness statements when a trial was always likely? Should we be
insisting that disclosure is made at that first hearing, as often it is in fact available?
Should we allow the prosecutor a few minutes to phone or text his witnesses to
The Lord Chief Justice said “We need referees who will go into the changing rooms
before hand, tell each side how the game will be played, warn the players who may
go offside that they are being watched, and as for those who foul, that they will be
sent off. And the proceedings played once.” We have already started going into the
changing rooms. We have been very struck by the positive attitude of those Crown
prosecutors and those defence lawyers to whom we have spoken. They are as
frustrated by failures in the system as we are. We are asking the Crown Prosecution
Service to have a file complying with the National File Standard (see later) at the first
hearing, and a properly instructed advocate who is able to take appropriate
decisions. We are telling the defence lawyers that the information we require on the
case management forms must be provided. We are not asking for privileged
information and are not intruding into the right not to self incriminate. We are
asking the courts service to deal promptly with legal aid applications, and to allow
sufficient time for the early case management hearings. We are asking that lists not
As for sanctions, they are simple. If the defence has complied with all its
responsibilities and is fully ready for trial, but the prosecution has failed to comply
with its responsibilities, then normally it would not be in the interest of justice for
the Crown to be allowed an adjournment and the prosecution may fail. If the
defence has not complied with its responsibilities then it can achieve no advantage
from that. Ambush defences will result in adjournments and costs awards.
The response of one chief constable to our request that the police provide a full file of
papers to the prosecution and therefore the court at the first hearing was interesting.
He said: "We did that before at great expense of time and money. The magistrates’
courts did not comply with their side of the bargain. Cases were not being properly
case managed and officers were still being required to come to court unnecessarily.
So we stopped and now provide streamlined papers." We, the judiciary in the
magistrates’ courts, must accept our responsibility for not fully implementing before
now Criminal Justice, Simple, Speedy and Summary. We must do our best with the
papers that are now provided.
There has been real progress, but we must do better. That is why we are running
seminars across the country in the autumn and early winter. We are hoping that all
magistrates who sit as chairmen, district judges, and legal advisers will attend those
seminars. We want to be able to say to the police and others in the system that we
will play our part, and expect them to play theirs.
For several years now the aim has been for a case to be fully case managed at the
first hearing, and concluded at the second hearing. Generally trials should take place
within weeks rather than months. Uncontested witnesses will not be troubled
If we can make the final leap, and achieve the aim to which so much progress has
already been made, then the real winner will be justice. Innocent defendants,
witnesses and victims all deserve to be released from the anxiety of court
proceedings as soon as possible.
Part of the Lord Chief Justice’s Speech referred to above
"One problem in recent years is that the law, the legislation, and the procedures have
led to increased cost and complexity of proceedings before the magistrates. These
are, after all, intended to be courts of summary jurisdiction. Summary not in the
sense of unjust or unfair, but summary in the sense of brief, without needless
formality. Of course, if an individual is to be convicted of an offence, or may be sent
to prison, justice must be done. Process must be fair, and proper opportunity
provided for the evidence against the defendant to be tested, and for the defendant
to give evidence on his own behalf. But sometimes I wonder whether we tend to
forget that although a Rolls Royce will carry us with great comfort and dignity from
London to Birmingham, an efficient little Mini will do the same, at much lower cost.
And linked to the same problem, although not identical with it, we live in an age
which is increasingly paper orientated, and the bulk of paper can lead to confusion
between activity and action. Activity is busyness, busyness in the form of directives
and processes, Blackberry and email, and protocol compliance, and action, real
action which has to start by overcoming the funereal, burying effect of bumph,
before we arrive at the heart of the matter.
… disclosure issues have become hugely complex, and I have asked Lord Justice
Gross to look closely into yet another manifestation where the problem of process
has had a knock on effect on efficiency for the police and the courts. And I do
however suggest that I appreciate, and am profoundly concerned about the amount
of time police officers spend in courts (and I include the Crown Court here) when
their evidence, in the end, is unchallenged and could be admitted, or is for any
reason not required to be given orally. That is part of my responsibilities.
For these reasons we launched the national roll out of CJSSS in the magistrates’
courts – Criminal Justice, Simple, Speedy and Summary – In February 2007. The
objective was to increase efficiency and effectiveness, by reducing the number of
unnecessary hearings in each case, and reducing the overall time taken for such cases
to reach their conclusion. The results are not unimpressive. In March 2007 60% of
cases were completed within 6 weeks of the change: that has now increased to 69%.
Putting the figures slightly differently, it used to take 8.8 weeks on average from
charge to completion of a case in March 2007, and this is now just over 6 weeks. More
effective case management by the magistrates, encouraging them to get to grips with
the issues, asking pointed questions of the prosecution and the defence is essential.
The result of this process is that an average of 3.02 hearings per defendant per case in
March 2007 has been reduced to 2.14 hearings. It is still not perfect. But we are
making progress. And I am very grateful to Lord Justice Goldring the present Senior
Presiding Judge, and Lord Justice Leveson who was Senior Presiding Judge before
him, and the magistrates’ courts and their clerks for achieving what has already been
achieved. The advantages are obvious. One simple one is a reduction in the number
of officers warned to attend court, who are thus able to continue with their ordinary
duties. In Hertfordshire alone this more robust approach has on current estimates
saved, I am told, between three and four thousand police attendances annually.
My ambition, publicly expressed before, is that in the interests of everyone, including
the defendant, and all witnesses, not exclusively police witnesses, we need a changed
attitude and understanding of the role of the court. Dealing with it superficially, the
judge or magistrates are referees. But until recently the role of this particular type of
referee has been to wait on the pitch until the teams turn up. Wait for as long as they
wished. That is no good. We need referees who will go into the changing rooms
beforehand, tell each side how the game will be played, warn the players who may
go offside that they are being watched, and as for those who foul, that they will be
sent off. And having prepared the teams for the kind of refereeing they will expect,
to lead the teams out on to the pitch and put the ball down in the middle of the
centre circle at the time when the kick-off is supposed to take place. And the
proceedings played once."
DVD on Case Management – Supporting Materials
The assumption underlying all the scenarios is that courts will apply the letter and spirit of the
Criminal Procedure Rules (CPR), and other guidance, including case law, provided to
magistrates’ courts. The overriding objective of the CPR (Part 1.1.2(e)) requires courts to deal
with cases efficiently and expeditiously. In almost all summary cases an early trial is likely to be
a fairer trial, when the evidence is fresh and memories have not faded, than a delayed trial. The
approach taken in the various scenarios is unashamedly robust. Its aim is to eliminate whatever
remains of the adjournment culture.
Case Management Form – Completion of Form
The case management form referred to in this scene is to be found in Annex E of the
Consolidated Criminal Practice Direction. Its use is made mandatory by virtue of paragraph V
56.2 of the Practice Direction. The suggestion that the form need not be completed immediately
is, hopefully, not one that will be encountered often now that advocates are accustomed to the
court insisting on its use whenever a not guilty plea is entered. The questioning by the district
judge of the need for witnesses to attend court is in accordance with Part 1.1(2)(c) of the CPR, as
respecting the interests of witnesses is part of the court’s duty to deal justly with criminal cases.
Part 3.2(2) also requires the court to make an early identification of the needs of witnesses. S.9
Criminal Justice Act 1967 allows a signed witness statement, if accepted by the other party, to
stand as that witness’s evidence, thus avoiding the need for that witness to give oral evidence.
S.10 of the same Act allows prosecution and defence to put in writing any agreed facts, thus
avoiding the need to call witnesses to prove those facts.
The prosecution’s obligation to disclose material to the defence is to be found in Part 21 of the
CPR. It is limited initially to material on which it relies as part of its case. Standard directions are
now 28 days following the disclosure of any prosecution material which might reasonably be
considered capable of undermining the case for the prosecution against the accused or of
assisting the case for the accused. If the defence want disclosure of other material (such as a
video tape on which the prosecution do not intend to rely and which is the prosecution say does
not meet the test for disclosure of underused material) they must first serve a defence statement
under s.6 Criminal Procedure and Investigations Act 1996 and make an application under s.8 of
the same Act for further specific disclosure. For more details see part 3 of the Protocol, later.
The defence must also give notice to the prosecution of the details of any witnesses whom they
propose to call (s.6C Criminal Procedure and Investigations Act 1996). The court’s power to
make directions requiring the parties to prepare for trial derives from CPR Part 3.5. The court’s
duty to consider hearing evidence in the absence of an adult defendant is to be found in s.11 (1)
Magistrates’ Courts Act 1980 and the case management form prompts the defendant’s lawyer to
remind the defendant of this.
Case Management Form – Non Attendance of Prosecution Witness
The starting point for dealing with any application in the magistrates’ court must be the
overriding objective and if it is demonstrably applied correctly and fairly it is unlikely that any
decision will be challengeable. It should always be borne in mind that cases must be dealt with
justly, acquitting the innocent and convicting the guilty, being fair to the prosecution and the
defence, recognising the rights of the defendant, respecting the interests of victims and
witnesses and dealing with the case in ways which reflect the gravity of the offence, the
complexity of the case, the severity of the consequences to the defendant and others and
bearing in mind the needs of other cases. Importantly it also means dealing with cases efficiently
and expeditiously. This approach was used by the Administrative Court in the case of Persaud v
DPP  EWHC 1682 (Admin).
Further, Part 3.1 of the CPR requires that cases are managed until the conclusion of the case. It
is the duty of the court to actively manage the case and this includes (Part 3.2(g)) discouraging
delay and avoiding unnecessary hearings. It is the duty of the parties to assist the court in its
case management functions (Part 3.3).
There is a long line of cases which deal with the question of adjournments.
The foundation stone was laid in the case of R v Aberdare Justices ex parte DPP  155 JP
324, in which it was held that the decision whether or not to adjourn is a discretionary one and
that the court is entitled to pay attention to the need for expedition.
In the case of Hereford Magistrates’ Court ex parte Rowlands  QB 110, the court was
reluctant to set any hard and fast rules but emphasised the need to examine the circumstances
leading to delay, the effect on the parties and the consequences to the parties of granting or
refusing the application to adjourn. The need to act fairly was stressed.
In R (ex parte Walden and Stern) v Highbury Corner Magistrates’ Court  EWHC 708 the
court emphasised the need for rigorous scrutiny of applications to adjourn. It overturned
decisions by magistrates to grant adjournments where the inevitable inference was that the
prosecution had failed to warn their witnesses to attend.
The Administrative court took the opportunity to set out matters to which the court must have
regard in CPS v Picton  EWHC 1108. The principles set out in the case are these:
1. The decision to adjourn is one within the discretion of the court and with which the
Administrative Court will be slow to interfere unless clear grounds for doing so are shown.
2. The court must have regard for the need for expedition. Delays bring the system into
disrepute and proceedings in the Magistrates Court are supposed to be simple and
3. Applications for adjournments should be rigorously scrutinised.
4. Where an adjournment is sought by the prosecution, magistrates must consider both the
interest of the defendant in getting the matter dealt with, and the interest of the public that
criminal charges should be adjudicated upon, and the guilty convicted as well as the
5. With a more serious charge the public interest that there be a trial will carry greater
6. Where an adjournment is sought by the accused, the court must consider whether he will
be able fully to present his defence and, if he will not be able to do so, the degree to
which his ability to do so is compromised.
7. The court must look at the consequences of an adjournment and its impact on the ability
of those involved to remember salient facts.
8. The reason that the adjournment is required should be examined and, if it arises through
the fault of the party asking for the adjournment that is a factor against granting the
adjournment. If that party was not at fault that may favour an adjournment. Likewise if the
party opposing the adjournment has been at fault, that will favour an adjournment.
9. The court must look at the history of the case.
10. The court's duty is to do justice between the parties.
More recently, In the case of Aravinthan Visvaratnam v Brent Magistrates' Court  EWHC
3017 (Admin) Mr Justice Openshaw said:
" I have no doubt that there is a high public interest in trials taking place on the date set
for trial, and that trials should not be adjourned unless there is a good and compelling
reason to do so. The sooner the prosecution understand that they cannot rely on their
own serious failures properly to warn witnesses the sooner the efficiency in the
Magistrates' Court system improves. An improvement in timeliness and the achievement
of a more effective and efficient system of criminal justice in the Magistrates' Court will
bring about great benefits to victims and to witnesses and huge savings in time and
The case of Balogun v DPP  EWHC 799 (Admin) concerned a review of an adjournment of
a matter which had been listed for trial for the first time. Notwithstanding this, the Administrative
Court overturned the decision to adjourn because of a failure to rigorously scrutinise all matters
including the reasons that an officer’s dates to avoid had not been properly considered when
fixing a trial date.
In the scenario shown on the DVD, the failure to warn the witness well in advance resulted at the
very least in a significant delay in bringing the officer’s difficulties to the attention of the court. In
this case, the defendant has made it clear what the issues were and would have been expecting
the trial to proceed. It is unacceptable that the officer was not warned sooner, which might have
resulted in an early application to vacate and a much shorter delay in bringing the case to a
Looking at the overriding objective, taking into account all of the factors included in Part 1.2, and
applying the factors set out in Picton, refusing the application for an adjournment is most
consistent with dealing with this case justly.
Case Management Form - Privilege
In completing case management forms, defence lawyers are increasingly being urged to write on
the forms that they cannot identify the real issues without self incrimination or breaching privilege.
This is being taught at various professional training venues attended by members of the
professions. In essence the question for consideration here is whether or not the defendant can
rely upon these issues and put the prosecution to proof of its case only.
Firstly, as to the issue of putting the prosecution to proof, this was somewhat discredited by
Leveson LJ in the case of Balogun v DPP  EWHC 799 (Admin) in which he said at
“For my part, however, I do not accept that the spirit or letter of the Criminal Procedure
Rules is complied with by asserting that the Crown is put to "strict proof", in the absence
of detail, so as to ensure precisely which witnesses should be brought to court because
there are substantial or real challenges to their evidence rather than because of a desire
to call witnesses to attend to see what might emerge and in the vague hope that some
defence might appear or some failure might manifest itself in an unjust acquittal.”
Two things flow from this assertion. Firstly what is meant by putting the CPS to strict proof and,
secondly, the fact that that does not comply with the duty under CPR Rule 3.3 putting all parties
under the active duty to identify the issues for trial and assist the court in case management. In
the first place, if the defence put the CPS to proof, then they may lose their right to assert which
witnesses will be required. That would remain an issue for the CPS. They would be charged with
deciding what evidence they wish to call and how. They may, for example, decide not to call a
witness where the defence will not accept them section 9, if they feel that they can conduct the
trial without them. The defence usually do not see this as an issue until too late. There may then
have to be an adjournment with wasted costs? as any adjournment to assist the defence (if
granted) would be of their own causing.
In R v Gleeson  WCA 3357 Auld LJ stated that;
“A criminal trial is not a game. ..It is a search for the truth in accordance with the twin
principles that the prosecution must prove its case and that a defendant is not obliged to
inculpate himself, the object being to convict the guilty and acquit the innocent.”
These sentiments are now enshrined in Rule 1.1 as the overriding objective of the Criminal
Two recent cases have caused the defence some concerns in this matter, the issues of self
incrimination and privilege. It is clear however, that the High Court is considering these issues
and confirming that requiring the defence to complete a case management form, and indicate
those issues upon which they dispute the prosecution case, does not offend those principles.
In R v Chorley Justices  EWHC 1795 and in Malcolm v DPP  363 (Admin) the court
determined that there should no longer be an ambush culture in the preparation of cases for trial.
However, that does not mean that the CPS should expect the court to allow poor prosecutorial
habits to develop by failing to deal with likely issues properly at trial. See Payne v South
Lakeland Magistrates’ Court  EWHC 1802 (Admin).
In R v Rochford  EWHC 1928, dealing with the filing of a defence statement (section 6
CPIA 1996), the Vice President stated at paragraph 2:
“Do legal professional privilege and the defendant’s privilege against self-incrimination
survive section 6a? The answer to that is yes. What the defendant is required to
disclose… is what is going to happen at the trial. He is not required to disclose his
confidential discussions with his advocate… nor is he obliged to incriminate himself if he
does not want to”.
In essence, the issue of what evidential matters are agreed and what points of law will be argued
at trial is required. What is not required is how the defence will lead those issues save by
identifying them and who will give evidence on them.
In the case of Firth –v- Epping Magistrates’ Court  EWHC 388 (Admin), the issue was the
admissibility of the case management form to prove an essential plank in the prosecution case,
presence. The court determined that the form was admissible as part of the evidence in the
prosecution case and the defendant was convicted and sought a review of that decision. Toulson
LJ stated at paragraphs 22 and 23:
“It does not infringe against the principle that a defendant is not required to incriminate
himself for the court to require that the nature of the defence is made plain well before the
trial. Of course any requirement for disclosure of the nature of the defence must be a fair
requirement, in the sense that it must not be extracted from a defendant in circumstances
where the prosecution have no case and are trying to adopt Star Chamber processes to
try to build a case, but the rules are designed to ensure that this does not occur. So I
would reject the broad proposition that any requirement that a defendant should disclose
his or her hand before trial is inherently repugnant”
The Law Society of England and Wales in their Practice Note to solicitors 13 December 2009 on
the 2005 Criminal Procedure Rules (now 2010 and soon 2011) state:
Keeping the court informed whilst protecting the client’s rights
It is essential to appreciate that the purpose of Rule 1.2 (1) (c) is to enable the court to
control the preparation process and avoid ineffective and wasted hearings. When
something goes wrong because of a failure of a defendant to co-operate with his or her
solicitors the court should be aware of this and if the solicitor fails to keep the court
informed, he or she risks breaching their duty to the court under the provisions of the
‘Lawyers conducting litigation owe a divided loyalty. They have a duty to their
clients, but they may not win by every means. They also owe a duty to the court
and the administration of justice. ... Sometimes the performance of these duties to
the court may annoy the client.’17
The concept of the solicitor apparently putting the court’s interests above those of the
client has caused many solicitors to question where their duty lies. The answer is to be
found in Rule 1.1(2) (c) which indicates that one of the requirements of the overriding
objective is ‘to recognise the rights of a defendant, particularly those under Article 6 of the
ECHR European Convention on Human Rights’.
The relevant rights of a defendant in this context are:
• the presumption of innocence
• the right to silence and privilege against self-incrimination
• the ‘fundamental human right’18 to legal professional privilege
This is explicitly explained in the note of the Lord Chief Justice to the Rules where it is
‘The presumption of innocence and a robust adversarial process are essential
features of the English legal tradition and of the defendant’s right to a fair trial. The
overriding objective acknowledges those rights. It must not be read as detracting
from a defendant’s right to silence or from the confidentiality properly attaching to
what passes between a lawyer and his client.’
The last of these rights means that a court cannot ask a solicitor to reveal what a
defendant has told him or her if it is privileged, unless the defendant consents. Rather, he
or she has a duty to the client not to reveal it.
However solicitors can clearly be required by the CPR, or by a direction of the court made
under its case management duties arising from the CPR, to provide information that will
enable the court process to proceed efficiently and expeditiously, but only if in so doing
none of the defendant’s rights listed above, is encroached upon.
Arthur J S Hall & Co. v Simons  UKHL 38, and  1 AC 615 per Lord
Hoffmann at page 686
As per Lord Hoffmann in Morgan Grenfell, above
Thus the professional body equally supports the position the courts are taking.
Case Management Form – Unrepresented Defendant (Not Guilty Plea)
The defendant is and always has been entitled to put the prosecution to strict proof of its case. In
this scenario the defendant appears initially to be indicating just that. Under questioning from the
District Judge he reveals a possible defence, which has not been disclosed on the case
management form. However, in the Crown Court it is now established law that a defendant is not
entitled “to conduct the trial by the putting in issue of specific matters and advancing either
evidence or argument towards them without giving notice in his defence statement that he is
going to do it” (per the Vice President, Hughes LJ in R v Rochford  EWCA Crim 1928).
The same may well be true of summary proceedings, substituting the case management form for
the defence statement.
The defendant is warned by the District Judge that he may not be able to address an issue he
has not raised. In the case of Writtle v Director of Public Prosecutions  EWHC 236
(Admin), the decision of the magistrates to refuse to admit the evidence of a witness at trial when
the issue with which he dealt had not been raised at an earlier stage in the proceedings was
In R v Ishmael Adams  EWCA 3025 the charges alleged possession of 79 ecstasy tablets
at a nightclub, with intent to supply. A witness who failed to attend the trial was a security guard
who had found the drugs. On appeal it was decided that his statement was admissible because
the defendant had always accepted that he was in possession of the drugs. “It was plainly in the
interests of justice for the uncontentious matter of possession to be proved by the crown by the
admission of the witness statement. To hold otherwise would not be to do justice; and it would
rather be to afford a defendant an escape on purely technical grounds. “
A defendant who refuses to indicate his defence can create difficulties for the court in assessing
what evidence will need to be called and which witnesses need to attend.
The court has a significant arsenal of weaponry at its disposal to deal with this situation, not least
the provisions of section 114(1) (d) of the Criminal Justice Act 2003. If the court invites a
hearsay application, using its powers to vary the form and time to make the application in
accordance with Rule 34.5 of the Criminal Procedure Rules 2011, so as to indicate that an
application to admit the evidence of all of the prosecution witnesses under section 114(1) (d) will
be considered immediately, it will force the defence to indicate why the witness is required! This
can truncate matters considerably and force a defendant to accept that if there is no real defence
then the court will not allow witnesses to be called simply to see whether they will turn up.
Pleas – CCTV
This scene is based on an application for an adjournment to enable the defence to view CCTV
evidence. As mentioned above, Part 21 CPR obliges the prosecution to provide initial details of
the prosecution case at, or before, the beginning of the day of the first hearing. Part 21.3 defines
the initial details by reference to a “summary, statement, document or extract”. In the case of R v
Calderdale Magistrates’ Court  Crim L.R. 141, it was conceded by counsel for the
prosecution at the hearing of the appeal that a video tape was a document for the purposes of
the rules which apply to Advanced Information in either-way cases. The Divisional Court
therefore ruled that the court should have granted an adjournment to allow the defendant to view
the CCTV evidence. This applies only in either-way cases and in any event it is submitted that
this case is not determinative of the point in view of later case law. In DPP v Croydon
Magistrates’ Court  EWHC 552 (Admin) a differently constituted Divisional Court cast doubt
on the concession in the Calderdale case. Anthony and Berryman’s Magistrates’ Courts Guide
2011 (widely used by practitioners) goes further and says this:
NB: There is a common misconception that initial details (formerly known as advance
disclosure) includes CCTV (see CPR, Part 21). This was based on a generous
concession made by counsel in R v Calderdale Magistrates' Court, ex p Donahue and
Cutler  Crim LR 141, that 'document' included a video. This concession was
doubted in DPP v Croydon Magistrates' Court  EWHC 552 (Admin).
CCTV footage was held not to be a document in the costs case of R v Uddin  2 Costs LR
274 in which both the Calderdale and Croydon cases were cited. It follows that a magistrates’
court is entitled to refuse an adjournment for the purpose of watching CCTV evidence. For a
wider consideration of the rules relating to service of prosecution evidence, see the Protocol for
the Provision of Advance Information, Prosecution Evidence and of Unused Material in the
Magistrates Courts, especially part 1 and part 2 (later).
Pleas – Insufficient Evidence
The obligation on the prosecution to provide advance information in summary cases is based
mainly on Part 21 of the CPR and is supplemented by guidance from the Attorney-General and
the 2006 Protocol and the Adult Criminal Case Management Framework. Part 21 requires the
prosecution to make available details of its case to the defence “at, or before, the beginning of
the day of the first hearing”. Those details must include a summary of the evidence and the
defendant’s previous convictions. There is no specific obligation to provide more than this at the
first hearing, although it is good practice and in the interests of the prosecution to do so.
Paragraph 2.5 of the Framework provides:
“(a) The prosecution should serve advance information on the defence and on the court
as early as possible in accordance with local CJSSS practice and at the latest by 9am on
the day of the hearing. The content of advance information must comply with Crim PR
21.3(1) (a–b) and should be subject to a supervisory check before service
“(b) The defence should collect advance information promptly on the day of first
hearing and take instructions so that, in compliance with the Criminal Procedure Rules,
the first hearing is effective (see Objective C)
“(c) Before the court sits the prosecutor should be available at a designated time and
place, subject to local agreement, for consultation with defence”.
The obligation on the police to provide appropriate documentation is now to be found in the 4th
edition of the Director’s Guidance on Charging. This distinguishes between cases where a guilty
plea is expected and those where a not guilty plea is expected. Here, given the defendant’s no
comment interview, a not guilty plea must be expected. In such a case, the obligation on the
police is to supply the CPS with key witness statements in addition to the MG5 (police report).
Where the only witnesses are police officers, legible notebook entries can be provided instead of
This scene is perhaps an extreme example of minimal disclosure by the Crown but, even in such
a case, the opportunity to make progress is demonstrated.
Pleas – Legal Aid
Part 3.2 CPR imposes a duty on the court to manage cases actively “by giving any direction
appropriate to the needs of that case as early as possible”. Part 3.8 requires the court at every
hearing to take a plea or indication of plea (if it has not already been done) and in his guidance1
in 2009 Lord Justice Leveson stressed that this was not dependent on the extent of disclosure or
the grant of legal aid. Paragraph 1.4 of the Protocol2 states that magistrates’ courts should
expect to deal with both plea and venue at the first hearing. This scene deals with an application
for adjournment based on delay in granting of legal aid. Experience suggests that where the
lawyer chooses to withdraw (as happens in this scene) the unrepresented defendant is often well
able to enter a plea. Unrepresented defendants are common in the magistrates’ courts.
Pleas – Time for Instructions
The issue that arises here is covered by Paragraph 1.4 of the Protocol, which states that cases
can be put back in the list to enable the defence to consider any material provided. Paragraph
2.5 of the Framework (quoted in Pleas- Insufficient Evidence above) is also relevant here. In
practice, it would be unusual for a defendant in this position not to have had a solicitor’s advice at
the police station, where a certain amount of limited will already have taken place.
Pleas – Unrepresented Defendants
The suggestion (from the defence solicitors) that a defendant’s human rights are engaged by any
failure by the prosecution to provide full disclosure before a plea is entered is unsupported by
case law. The provisions relating to credit for entering a guilty plea are to be found in s.144(1)
Criminal Justice Act 2003. Maximum credit is given to those who enter a guilty plea at “the first
reasonable opportunity”, according to the Sentencing Guidelines Council Guideline. The
obligation to take a plea at the first hearing is discussed at Pleas- Legal Aid above. The
relationship between costs and fines was examined in the case of R v Northallerton Magistrates’
Court, ex parte Dove  Crim App R (S) 136 where the Divisional Court held that an order for
payment of costs could not ordinarily be grossly disproportionate to a fine, although there was no
requirement for an arithmetical relationship. This decision was applied in the case of Fearnley v
DPP  EWHC 1393 (Admin) where the Divisional Court upheld impositions in a drink driving
case of a fine of £1,500 and costs of £2,500. In Blow v Herefordshire District Council (17 March
2009) the court convicted the defendant of failing to prevent smoking in the public house he
managed, fined him £1000 and ordered him to pay "full prosecution costs” in the total sum of
£10,000. This decision was upheld on appeal. Orders for costs should not be made which are
beyond the means of a defendant to pay. In R v Dickinson  EWCA Crim 2143 a defendant
earning £150 a week was ordered to pay a fine of £200 and costs of £1200, and the court took
the opportunity to review the law on costs.
Essential Case Management: Applying the Criminal Procedure Rules (attached)
Protocol for the Provision of Advance Information, Prosecution Evidence and Disclosure of Unused Material in the
Trial Procedure – Ambush
It is now a well established principle that a defendant can gain no advantage from ambushing the
prosecution and failing to comply with his or her obligations under Part 3.3 of the Criminal
Procedure Rules 2010 to assist the court in its case management duties under Part 3.2. Criminal
proceedings are not a game and the Administrative Court has demonstrated time and again that
it will support the Magistrates’ Court in its efforts to prevent unfair advantage being gained by
those who fail to comply with their statutory obligations.
In 2006, in the case of Director of Public Prosecutions v Chorley Justices  EWHC 1795
(Admin) the Administrative Court sent this clear signal:
“the Criminal Procedure Rules... have effected a sea change in the way in which cases
should be conducted... The rules make clear that the overriding objective is that criminal
cases be dealt with justly; that includes acquitting the innocent and convicting the guilty,
dealing with the prosecution and the defence fairly, respecting the interests of witnesses,
dealing with the case efficiently and expeditiously, and also, of great importance, dealing
with the case in a way that takes into account the gravity of the offence, the complexity of
what is in issue, the severity of the consequences to the defendant and others affected
and the needs of other cases. Rule 1.2 imposes upon the duty of participants in a criminal
case to prepare and conduct the case in accordance with the overriding objective, to
comply with the rules and, importantly, to inform the court and all parties of any significant
failure, whether or not the participant is responsible for that failure, to take any procedural
step required by the rules.”
The same theme was adopted in the case of Malcolm v Director of Public Prosecutions 
EWHC 363 (Admin). In upholding the decision of the magistrates to allow an officer to be recalled
to deal with an ambush that was only raised during the defence representative’s closing speech,
the magistrates had retired to consider their verdict and after coming back to announce their
decision, allowed a prosecution application to admit further evidence, Stanley Burnton J (as he
then was), had this to say:
“In my judgment, Miss Calder's submissions, which emphasised the obligation of the
prosecution to prove its case in its entirety before closing its case, and certainly before
end of the final speech for the defence, had an anachronistic, and obsolete, ring. Criminal
trials are no longer to be treated as a game, in which each move is final and any omission
by the prosecution leads to its failure. It is the duty of the defence to make its defence and
the issues it raises clear to the prosecution and to the court at an early stage. That duty is
implicit in rule 3.3 of the Criminal Procedure Rules, which requires the parties actively to
assist the exercise by the court of its case management powers, the exercise of which
requires early identification of the real issues. Even in a relatively straightforward trial
such as the present, in the magistrates' court (where there is not yet any requirement of a
defence statement or a pre-trial review), it is the duty of the defence to make the real
issues clear at the latest before the prosecution closes its case.”
In the case of Writtle v Director of Public Prosecutions  EWHC 236 (Admin), the decision of
the magistrates to refuse to admit the evidence of an expert at trial when the issue with which he
dealt was not raised at an earlier stage in the proceedings was upheld. Mr. Justice Simon made
the following observations:
“It seems to me that the Justices were right in saying that the evidence was inadmissible
since it did not relate to an issue which had been raised at the appropriate stage. The
appropriate stage would have been a reasonable time before the cross-examination of
Sergeant Nestling so that he and the prosecution had an opportunity to consider it.
Equally, it was in my judgment entirely open to the Justices to refuse the application as a
matter of discretion….If the late application to adduce further expert evidence had been
allowed, delay would undoubtedly have occurred”.
“the present regime of case management should in general ensure that the issues in the
case are identified well before a hearing. There will, of course, be cases where something
occurs in the course of a trial which may properly give rise to a new issue, but this was
not such a case. The days when the defence can assume that they will be able
successfully to ambush the prosecution are over.”
These decisions have been endorsed again and again. (See Williams v DPP  EWHC 2354
and R v Penner  EWCA 1155 as two examples.)
Further, the Administrative Court has been at pains to point out that where there is a failure to
observe the duty of the parties in identifying the real issues in the case, then the court should use
its powers to impose the sanction of a costs order where appropriate. In Brett v Director of Public
Prosecutions  EWHC 440 (Admin) Leveson LJ made the observation:
“Without analysing precisely why this case required no fewer than twelve hearings or where
the responsibility lies (although there is the suggestion in the papers that the appellant's first
solicitors positively refused to identify the issues in the case), it is abundantly clear that it is
utterly unacceptable: the requirements of the Criminal Procedure Rules have been more
honoured in the breach than in their observance. Both sides have a duty to the court to
ensure that only the minimum time is taken in the resolution of criminal trials and, to such
extent as they or either of them fail to do so, the court should not be slow to impose sanctions
in the form of adverse orders for costs, if necessary against legal representatives. This also is
another lesson to be learned from the case.”
The threat of a wasted costs order against a defence representative is usually enough to send a
very clear warning shot across their bows. Section 19A of the Prosecution of Offences Act 1985
gives the power to the court to order wasted costs against a representative of a party (as
opposed to the power to make the order against the party themselves under section 19). A
wasted costs order will result in not only an order to pay the costs of the other party, but the
representative has no right to be paid for the work that they have undertaken for their client
during the hearing that has resulted in wasted costs. The order will also be followed by a referral
to the professional body of the individual concerned and will leave a black mark permanently. It is
a draconian order indeed, and it is worth pointing out to advocates who are at risk the very
serious nature of the threat that they face.
Trial Procedure – Bad Character Evidence
An application to admit bad character is normally made in accordance with Rules 35.2 and 35.4
of the Criminal Procedure Rules 2011. These prescribe that an application must be made in a
particular form by a party seeking to introduce evidence of a defendant’s bad character and
where that party is the prosecutor, they must serve a notice to that effect within 28 days of the
defendant entering a not guilty plea. The rules set out the timetable and format for responding to
the application where the defendant objects to bad character evidence being admitted.
Rule 35.6, however, reads as follows:
—(1) The court may—
(a) shorten or extend (even after it has expired) a time limit under this Part;
(b) allow an application or notice to be in a different form to one set out in the Practice Direction,
or to be made or given orally;
(c) dispense with a requirement for notice to introduce evidence of a defendant’s bad character.
The court is therefore perfectly entitled to allow the application to be made orally at this stage,
and will want to do so where it is obvious that an application could or should be made. This
ensures that the court is managing the case in accordance with its obligations under Rules 3.2(2)
(a) (identifying the real issues), Rule 3.2(2) (c) (achieving certainty as to what must be done and
by whom), and Rule 3.2(2) (f) (discouraging delay, dealing with as many aspects of the case as
possible on the same occasion and avoiding unnecessary hearings).
Courts are often faced with the argument that a bad character application should not be dealt
with by a trial bench. Not only does putting the mater in front of a trial bench reduce the number
of hearings that will be needed, but almost always no prejudice will follow. If the court rules that
the evidence should go in then there has been no prejudice. If the bench rules that the evidence
should not be admitted it has committed itself to taking no account of the matters concerned
when reaching its decision about guilt or innocence.
The issue was raised in the case of R (on the application of Robinson) v Sutton Coldfield
Magistrates’ Court  EWHC 307 in that it was argued that even if the court did not take the
matters into account it gave the perception of unfairness for the trial bench to hear of the matters
and then proceed to deal with the case (in that case an application to extend the Crown’s time to
admit bad character evidence).
Mr. Justice Owen said the following:
“Where an application is made to adduce bad character evidence before a Magistrates'
Court, the Justices will, of necessity, hear details of the conviction in order to rule on the
application. If the application fails they will put the convictions out of mind when they hear
the case. The fact that they know the details of the previous convictions does not
disqualify them from discharging their role as fact finders in the trial.”
Trial Procedure – Ideal Case Management
This case demonstrates just how far case management has moved forward in a properly
considered and Rule compliant way. It demonstrates the Overriding Objective in Rule 1.1 and
how the parties are endeavouring to apply sound case management principles to further the said
overriding objective in assisting the court to identify the issues and the witnesses that go to the
issues and that are likely to assist the court reach a decision on the points in question. Thus this
case demonstrates what can be achieved in reducing the timeframe for the trial as to length and
as to how soon the case can be called on to trial. This is in accordance with CPR Rule 3. Indeed,
the parties and the court have made sensible use of the case management form to clarify the
issues and to ensure that possible trial issues are considered and how they will be managed, if
they should arise. Drafting appropriate admissions under s.10 is central to the process of
avoiding calling unnecessary witnesses and to concentrating the trial court upon the issues that
will define the case.
The Court has not only identified with the parties’ actual applications but applications that may be
made depending upon how the evidence comes out at trial. For example the issue of bad
character of the defendant in the event that he attacks the character of the Injured Party. This
issue could then be flagged where appropriate, for directions to be made as to the format,
content and timing of applications under the relevant rules (examples are: Rule 35 deals with bad
character issues, Rule 37 deals with the conduct of trials in the magistrates’ courts).
As to the issue flagged at the hearing concerning witness summonses, these are dealt with under
Rule 28 of the CPR. Under Rule 28, there are set out time limits to apply for witness summonses.
Although the rules envisage best practice, they also recognise that issues change and so too do
witness requirements. Under Rule 28.8, the court retains the power to vary, alter or amend any
time limit and the format of the application. This is a power that can be utilised as here, to prevent
the parties having to do more work than is necessary, in writing when a short consideration of the
real issues and the making of an oral application, assists all and does not prejudice the
defendant. This mirrors the general tenor of the rules to enable a court to vary procedures where
it would be just and reasonable to do so. Again, the overriding issue is fairness. One wonders
why, historically, a delay has always seemed fairer?
The agreement that continuity evidence is agreed (or can be dealt with in sec 9 statements by
agreement) is underutilised by many courts on the basis that the CPS must prove each and
every aspect of the case. That it is true that the burden of proof is on the prosecution is not in
dispute, simply a better way of doing so. The days of requiring witnesses to attend to give
continuity evidence in most summary trials must surely be a thing of the past. An example of
such bad practice led one court to have a plea to hearing of many months when one officer
(continuity of CCTV transfers of formats) was never agreed. His diary was so full of court dates, it
is a wonder he actually attended to his job. It certainly meant that once he was agreed routinely
section 9, trials came on an average of 8 weeks sooner, taking into account all other witness
In terms of good case management, there are always improvements that can be suggested. For
example, the CPS is required under Rule 29 to make special measure applications in writing
unless the court exercises discretion to vary this. Again, the MG2 on the CPS file often has all of
the relevant information as to the making of an application but it is rarely, if ever, used to fund an
application at the first hearing. There are many ways to improve the trial processes and this
scenario demonstrates what can be achieved with goodwill on all sides. Again, in this scenario,
no mention is made specifically of whether special measures may assist the witness. This would
be preferable to having hearsay applications or witness summonses for a witness who is simply
afraid or concerned about giving evidence in the courtroom, in front of the defendant.
Trial Procedure – Immediate Trial
Most cases that come before the courts resulting in a not guilty plea will necessitate there being
case management at the first hearing to actively case manage the matter, identify the issues and
appropriate witnesses per CPR 33.2 and 3.3. The case is then directed to trial on a given date
with directions being made to facilitate the trial being conducted efficiently and on time. During
that period, the CPS will receive a file in compliance with the National File Standard from the
police, review the same and prepare the primary disclosure in accordance with section 3 of the
Criminal Procedure and Investigations Act 1996 and CPR Part 22. These lay out the duties of the
prosecution in disclosing their case and any material that undermines the prosecution case or is
likely to assist the defence. The defence then have the right to serve a defence statement under
section 6 to draw out secondary disclosure, if any.
The Prosecution will already have served upon the defence the initial details of the prosecution
case under CPR Part 21. In that Part, applicable to cases that can be tried in the Magistrates’
Courts; the CPS must under 21.2 serve initial disclosure (often called advance disclosure) upon
the court and the defence /defendant at, or before the first hearing. That disclosure should
include those matters set out in 21.3:
a) A summary of the evidence,
b) Statements, documents or extract relied upon by the prosecution, or
c) Any combination of summary, statement, document or extract, and
d) A copy of any previous convictions and
This is usually now served in the form of the Director’s streamlined disclosure forming the MG5
handed to the court and defence at or before the first hearing. It consists of most of those matters
referred to above. Often one or more items relied upon by the CPS to prove the case is not
present in the pack, such as CCTV evidence. This will not inhibit the taking of a plea but would
be served with the full primary disclosure within a month of first hearing or sooner by
agreement/court direction along with unused material in the form of the MG6C.
However, there are a number of cases where the initial or advanced disclosure contains all of the
likely available evidence of note. This scenario is one of those cases where an immediate trial
may be possible and not offend the principles of fairness and justice. Such cases involve the
question of the state of mind of the accused rather than a factual matter. Here the sole issue is
the accused’s dishonesty. He does not dispute ownership of the credit card nor that he would
have no right to retain it without the consent of the lawful owner. He simply wishes to allege that
he found it and had been en route to hand it in at the police station. The prosecution evidence is
all agreed section 9 as served in the Part 21 disclosure. It is unlikely that there will be any further
evidence disclosed by a full file and review and one must wonder how an adjournment is likely to
further the issue for trial. The defence will call their client and he will be cross examined upon his
defence, as to where he was going etc at the relevant times. The bench can assess his credibility
using all of their local knowledge and the likelihood of the events.
In this scenario, the defendant is on bail and the court can accommodate the trial time now.
Assuming the prosecutor is competent to conduct a summary trial (Crown Prosecutor, agent
advocate or Associate Prosecutor with AP2 status), then the trial could proceed forthwith. In CPR
Rule 1.1 it sets out the matters to take into account in assessing how to manage the case fairly.
In Rule 1.1(e) we are –
“deal with the case efficiently and expeditiously”.
In Rule 1.1(g) the overriding objective to deal with cases justly means
“dealing with the case in ways that take into account-
a) the gravity of the offence
b) the complexity of what is in issue
c) the severity of the consequences for the defendant and others affected, and
d) the needs of other cases”.
Here the issue is simple, the time is available to the court, the matter is not complex requiring
lengthy preparation and the outcome if proved is likely not to be considered severe.
There are other examples of cases for this approach. These are likely to be the “statutory
defence” cases. For example, in a case where the defendant is found to be in possession of a
bladed article at the police station custody desk (following arrest for another matter) he will be
charged with an offence under sec 139 Criminal Justice Act 1988. Assuming he denies the
matter and is to be tried summarily, it is likely that the prosecution case will consist of the officer
who arrested him and others in the custody suite. They are likely to be agreed assuming the
defendant accepts physical possession. Usually, he will argue the “good reason” or “lawful
authority” defences in sec 139(4). What then is the merit in putting the case out for weeks to a
trial date when the real issue remains does this defendant have a good reason or lawful authority
for carrying the item? The defendant has to satisfy the burden of raising the defence on the
balance of probabilities and the CPS only then must overcome the same to the criminal standard.
Why then, should the case not be called on immediately, with the defendant going into the
[One possible problem may be where the defendant is in custody at the first hearing. Under
section 42 Magistrates’ Courts Act 1980. Under that section, a JP shall not
“take part in trying the issue of an accused’s guilt on the summary trial of an information if,
in the course of the same proceedings the justice has been informed, for the purposes of
determining whether the accused shall be granted bail, that he has one or more previous
However, that is to be repealed under Criminal Justice Act 2003 Schedule 37 from a date yet to
be appointed. Furthermore, it will only be relevant in cases where the defendant pleads not guilty
on first hearing in custody AND the bench has seen any previous convictions in a bail application.
If bail is an agreed issue and no convictions are referred to it will not apply. In any event, surely
courts can accommodate the trial by one bench dealing with the bail issue and then another
bench dealing with the trial on the same day?]
The real issue is fairness of the proceedings to all parties. It is suggested that this method of
calling on an immediate trial in an appropriate case, especially where the parties agree, does not
offend the fairness of the proceedings under CPR Part 1 Rule 1.1 and is not a breach of the
defendant’s Article 6 rights.
Trial Procedure – Psychiatric Report
Unlike the position in the Crown Court, there is no specific procedure in a magistrates’ court to
enable fitness to plead to be determined. This scene involves the court setting the case down for
a hearing under s 37(3) Mental Health Act 1983 for a fact-finding hearing. The purpose of such a
hearing is to enable the court, should it find the facts proved, to make a hospital order without
having convicted the defendant, after first obtaining a report pursuant to s.11 Powers of Criminal
Courts (Sentencing) Act 2000. No plea need therefore be taken. This course is arguably
preferable to the alternative, which would be to enter a not guilty plea and leave the defence of
insanity to be determined at trial: R (Singh) v Stratford Magistrates’ Court  EWHC 1582
(Admin). In this particular case the offence is summary and the court does not therefore have the
option of committing the defendant for trial so that fitness to plead can be determined in the
Crown Court. Of course, should the court find that the defendant did not do the acts alleged, the
case would conclude. The procedure adopted by the court in this scenario avoids the need for a
lengthy delay while medical reports are obtained; the defence can of course commence the
process of instructing a psychiatrist pending the outcome of the fact-finding hearing. The position
would be different if the defence insisted on their client’s right to a trial, with a view to a defence
of insanity being established. The Divisional Court in the Stratford case made it clear that before
embarking on the s.37 (3) procedure the court should invite submissions and give careful
consideration to the question of whether the issue of insanity should be tried. In reaching that
decision, the interests of justice were not limited to justice for the accused.
Witness Statement – Refreshing Memory
Section 139 of the Criminal Justice Act 2003 sets out:
(1) A person giving oral evidence in criminal proceedings about any matter may, at any
stage in the course of doing so, refresh his memory of it from a document made or
verified by him at an earlier time if—
(a) he states in his oral evidence that the document records his recollection of the matter
at that earlier time, and
(b) his recollection of the matter is likely to have been significantly better at that time than
it is at the time of his oral evidence.
(a) a person giving oral evidence in criminal proceedings about any matter has previously
given an oral account, of which a sound recording was made, and he states in that
evidence that the account represented his recollection of the matter at that time,
(b) his recollection of the matter is likely to have been significantly better at the time of the
previous account than it is at the time of his oral evidence, and
(c) a transcript has been made of the sound recording,
he may, at any stage in the course of giving his evidence, refresh his memory of the
matter from that transcript.
The decision to allow a witness to refresh his memory from a document made by him earlier is a
matter for the court and is discretionary. Once a witness has given evidence that the condition
set out in section 31(1) (a) is met, it is a matter for the court to decide whether his or her
recollection is likely to have been significantly better at the time than it is now. See R v Mangena
 EWCA Crim 2535 when it was said:
“Ultimately we think that the condition under section 139(1)(b) is a matter for the
assessment of the judge, whatever be the witness's view of the matter, and that therefore
section 139(1) is not..... prescriptive if two conditions are met by the witness himself or
herself, but that it is a matter for the discretion of the judge if the two conditions are met,
one of which is the judge's view that the witness's recollection of the matter was likely to
have been significantly better at the time of giving his witness statement than at the time
of his oral evidence.”
This followed the decision of the Court of Appeal in R v McAfee & Anor  EWCA Crim 2914
in which it was said
“It was for the judge to decide, having heard what the witness had to say, whether it was
likely that her memory would have been significantly better or not. The statute contains no
requirement of contemporaneity.”
Witness Statement – Statements used as Evidence-in-Chief
Rule 37.4(4)(e) of the Criminal Procedure Rules 2011 permit a party calling a witness to ask that
a witness’s statement stand as his evidence in chief. The two preconditions for this to be done
are that the parties agree and that the court permits this to be done.
This is a useful case management tool as it cuts down the time a witness will spend in the
witness box and therefore enables the court to ensure that cases are dealt with efficiently and
expeditiously and that the evidence is given in the shortest possible way (Rules 1.1(2) (e) and
If the court permits the evidence in chief to be given in this way then the statement must be read
aloud or the statement can be summarised with the court’s permission.
In reality as it is a precondition for this approach to be adopted for both parties to agree (and in
the case of multiple defendants for all parties to agree), there is very little chance of a
subsequent challenge to a decision to allow the evidence to be given in this way.
However, whilst some exhibits will be seen by members of the public in court that are clearly
visible such as weapons or CCTV that is played in court, the public do not have the right to
demand to see any exhibits or documents placed before the court. See the cases of R v
Waterfield  1 WLR 711 and R (on the application of Guardian News) v City of Westminster
Magistrates’ Court  EWHC 3376 (Admin).
ESSENTIAL CASE MANAGEMENT:
APPLYING THE CRIMINAL PROCEDURE RULES
The court must further the Overriding Objective of the Rules by actively managing each case
[Crim PR 3.2(1)].
The parties must actively assist the court in this without being asked [Crim PR 3.3(a)]. But at
every hearing, including at trial, it is the personal responsibility of the Magistrates or District
Judge actively to manage the case [Crim PR 3.2].
Unnecessary hearings should be avoided by dealing with as many aspects of the case as
possible at the same time [Crim PR 3.2(2) (f)].
B) The first hearing: taking the plea
At every hearing (however early):
Unless it has been done already, the court must take the defendant’s plea [Crim PR 3.8(2) (b)].
This obligation does not depend on the extent of advance information, service of evidence,
disclosure of unused material, or the grant of legal aid.
If the plea really cannot be taken , or if the alleged offence is indictable only, the court must
find out what the plea is likely to be [Crim PR 3.8(2) (b)].
C) If the plea is ‘guilty’
The court should pass sentence on the same day, if at all possible (unless committing for
If information about the defendant is needed from the Probation Service, it may be that a
report prepared for earlier proceedings will be sufficient or a ‘fast delivery’ report (oral or
written) may be prepared that day, depending on local arrangements.
If a ‘Newton’ hearing is needed, the court, with the active assistance of the parties, must
identify the disputed issue [Crim PR 3.2(2)(a); 3.3(a)] and if possible, determine it there and
then or, if it really cannot be decided, give directions specifically relating to that disputed issue
to ensure that the next hearing is the last.
It is important to note that all participants in criminal cases, including Magistrates, District Judges, and Justices’ Clerks must
follow and apply the Criminal Procedure Rules. The Rules are not mere guidance. Compliance is compulsory. The word “must” in
the Rules means must.
The expression ‘court’ includes Magistrates, District Judges, and Justices’ Clerks exercising judicial powers [Crim PR 2.2(1)].
Exceptions to the rule requiring the plea to be taken are rare and must be strictly justified.
D) If the plea is ‘not guilty’
The key to effective case management is the early identification by the court of the relevant
disputed issues [Crim PR 3.2(2) (a)]. From the start, the parties must identify those issues and
tell the court what they are [Crim PR 3.3(a)]. If the parties do not tell the court, the court must
require them to do so.
The relevant disputed issues must be explicitly identified and the case must be managed by the
court to ensure that the ‘live’ evidence at trial is confined to those issues.
The parties must complete the prescribed case progression form [Crim PR 3.11; Consolidated
Practice Direction V.56.2] and the court must rigorously consider each entry on the form in
order to comply with its duty actively to manage the case by making properly informed
directions specific to each case.
Only those witnesses who are really needed in relation to genuinely disputed, relevant issues
should be required to attend. The court must take responsibility for this (and not simply leave
it to the parties) in order to comply with the Overriding Objective of the Rules [Crim PR 1.1(2)
The court’s directions must include a timetable for the progress of the case (which can include
a timetable for the trial itself) [Crim PR 3.8(2) (c)].
The time estimate for the trial should be made by considering, individually, how long each ‘live’
witness will take having regard to the relevant disputed issue(s).
E) The parties’ obligations to prepare for trial include:
Getting witnesses to court [Crim PR 3.9(2) (b)].
Making arrangements for the efficient presentation of written evidence/other material [Crim
PR 3.9(2) (c)].
Promptly warning the court and other parties of any problems [Crim PR 3.9(2) (d)].
F) At trial
Before the trial begins, the court must establish, with the active assistance of the parties,
what disputed issues they intend to explore [Crim PR 3.10(a)].
The court may require the parties to provide:
A timed, ‘batting order’ of live witnesses [Crim PR 3.10(b) (i), (ii), (ix)].
Details of any admissions/written evidence/other material to be adduced [Crim PR 3.10(b)
Warning of any point of law [Crim PR 3.10(b) (viii)].
A timetable for the whole case [Crim PR 3.10(b) (ix)].
During the trial the court must ensure that the ‘live’ evidence, questions, and submissions
are strictly directed to the relevant disputed issues.
G) The Rules
For a full version of the Rules, see:
Lord Justice Leveson
Senior Presiding Judge for England and Wales
Case Management and Fairness in the Magistrates’ Court
Fairness is at the heart of the case management system that has developed over the
past decade, since the Auld Report.
In most summary cases, an early trial is almost always fairer than a delayed or
adjourned trial. The most obvious beneficiary is the innocent defendant. Anyone
who has been wrongly accused knows how difficult it is to get on with life until your
name has been cleared. Awaiting trial is hugely stressful. It is bad enough if you are
on bail, subject to sanction if you fail to attend court as required. There may be bail
restrictions on your liberty, sometimes interfering with family life. There is cost.
There is fear of consequences. Even for the guilty defendant the fear of consequences
and punishment can be worse than the reality.
Then there are witnesses. Almost nobody likes giving evidence. Most ordinary
people dread it. Even if your evidence is simple or formal, most people would prefer
not to attend court. It is unfair for witnesses to have to wait many weeks or months
before giving evidence. It is even worse to attend court and be sent away to come
back another day. It is an unnecessary worry for a witness to attend court, only to
find his/her evidence is not challenged and could have been agreed. The court
process owes it to people not to trouble them at all if their evidence is not in dispute;
to hear their evidence while it is still fresh in the memory; not to wait longer than
necessary to give evidence; and if presence at trial is essential then to help them give
their evidence in the best way possible.
But as important to fairness to innocent defendant and anxious witnesses is justice
itself. The court is more likely to reach a true verdict when it has heard evidence that
is fresh. It is, quite simply, easier to determine where the truth lies if evidence is
given before time erodes accurate memory. An early hearing is arguably a more
important aspect to a fair trial than any other, save of course an independent and
If trials concentrate only on what is in dispute they are shorter. This means they can
be heard sooner. This is why a rigorous case management process that the first
hearing is essential.
Case management and privilege
The Criminal Procedure Rules require a defendant to assist the court in its case
management functions by, among other things, properly completing the authorised
case management form. The principles of legal professional privilege and the
defendant's privilege against self incrimination have not been taken away. Requiring
a defendant to indicate in advance what he disputes about the prosecution case
offends neither of these principles. Complying with the rules requires a defendant to
disclose what is going to happen at the trial, not confidential discussions with his
advocate. Failure to comply should not be condoned by the court.
1. “CPR Rule 3.3 provides "Each party must (a) actively assist the court in
fulfilling its duty under rule 3.2 without or, if necessary with, a direction...
The use of a case progression form is part of this process.” [Toulson LJ in Firth
v Epping Magistrates Court  EWHC 388 (Admin) at paras 6 and 7.]
2. “Do legal professional privilege and the defendant's privilege against self-
incrimination survive section 6A [and by extension case management rules]?
The answer to that is "Yes". What the defendant is required to disclose... is
what is going to happen at the trial. He is not required to disclose his
confidential discussions with his advocate, although of course they may bear
on what is going to happen at the trial. Nor is he obliged to incriminate
himself if he does not want to. Those are fundamental rights and they have
certainly not been taken away...” [The vice-president, Hughes LJ, in R v
Rochford:  EWCA Crim 1928 at para 21.]
3. "A criminal trial is a search for truth in accordance with the twin
principles that the prosecution must prove its case and that a defendant
is not obliged to inculpate himself, the object being to convict the guilty
and acquit the innocent. Requiring a defendant to indicate in advance
what he disputes about the prosecution case offends neither of those
principles." [Auld LJ in Gleeson  1 Cr App Rep 29 p 416.]
4. “It does not infringe against the principle that a defendant is not required to
incriminate himself for the court to require that the nature of the defence is
made plain well before the trial.... So, I would reject the broad proposition
that any requirement that a defendant should disclose his or her hand before
trial is inherently repugnant.” [Toulson LJ in Firth (above) paras 22 and 23.]
5. “The case management process, especially following the introduction of the
Criminal Procedure Rules, requires a greater level of cooperation between the
parties than was once the case. The real issues are required to be identified at
an early stage. The rules discourage a defendant from sitting on his hands in
order to obtain a procedural advantage. If he does seek to gain advantage
from earlier economies of participation...the court should act to correct it, not
condone it.” [Richards LJ in CPS v Norwich Magistrates’ Court:  EWHC
82 (Admin) para11.]
Note: a more detailed list of propositions on this topic is available from
the Judicial College at firstname.lastname@example.org
Credit for guilty plea in the absence of disclosure
of the prosecution case
The Law Society has issued a practice note (20 January 2011) on advising a client on plea in
the absence of full disclosure. That advice can be interpreted as suggesting that a
defendant’s credit for a late guilty plea can be preserved by informing the court “about the
predicament faced by the lawyer due to lack of disclosure”.
"If you advise the client to enter a not guilty plea, or to enter no plea, to protect his or her
position due to the lack of information, you should ask the court to make a note of the
circumstances and the reasons for pleading so.
To help your clients retain the maximum credit for any subsequent guilty plea you should
advise your client about the position;
inform the court of the predicament you face due to the lack of disclosure."
There can sometimes be a misunderstanding about law on credit for an early plea of guilty.
Maximum credit for a plea of guilty will be given where that plea is entered at the first
reasonable opportunity. The meaning of "first reasonable opportunity" is considered in
Annex 1 to the Guideline (SGC Reduction in Sentence for a Guilty Plea).
“2. The key principle is that the purpose of giving a reduction is to recognise the benefits that
come from a guilty plea both for those directly involved in the case in question but also to
enable courts more quickly to deal with other outstanding cases ...
3. (a)The first reasonable opportunity may be the first time that a defendant appears before the
court and has an opportunity to plead guilty;
(b) but the court may consider that it would be reasonable to have expected an indication of
willingness even earlier, perhaps whilst under interview;
Note: For (a) and (b) to apply, the Court will need to be satisfied that the defendant (and any
legal adviser) would have had sufficient information about the allegations.”
Earlier in the guideline is a statement of purpose which says: "A reduction in sentence is
appropriate because a guilty plea avoids the need for a trial (thus enabling other cases to be
disposed of more expeditiously), shortens the gap between charge and sentence, saves
considerable cost, and, in the case of an early plea, saves victims and witnesses from the
concern about having to give evidence. The reduction principle derives from the need for
the effective administration of justice and not as an aspect of mitigation.
It is recognised that there will be cases where a defendant does not know whether he is
guilty or not guilty of the offence charged. An example given by the Sentencing Advisory
Panel was of a man charged with dishonest handling who believes the goods were stolen,
but does not know. A more common example might be the defendant who cannot remember
the events complained of, perhaps because of drink or drugs. In such cases the defendant
would not normally lose credit for asking for sufficient evidence to satisfy himself that he is
A defendant is in any case entitled to put the Crown to proof. Logically this requires a trial.
Sometimes a defendant wants to assess the strength of the evidence before pleading guilty.
It must be remembered that there is no entitlement to see all the evidence (as opposed to a
summary) before entering a plea or indeed until shortly before trial (See CPR 21 and Protocol
above). So although there is nothing to stop a defendant pleading not guilty and then
changing his plea when he sees the full extent of the prosecution case, a defendant who
waits until full disclosure is made will not normally gain the same credit as somebody who
entered the plea of guilty as soon as practicable. Moreover adjourning to see the full
prosecution evidence will normally add to the costs asked for against the defence.
Why a defendant should cooperate with the case management process
It is the law
1. “CPR Rule 3.3 provides "Each party must (a) actively assist the court in
fulfilling its duty under rule 3.2 without or, if necessary with, a direction...
The use of a case progression form is part of this process.” [Firth paras 6 and
2. [Rochford 20.] “Can the lawyer properly advise a defendant not to file a
defence statement? The answer to that is "No". The obligation to file a defence
statement is a statutory obligation on the defendant. It is not open to a lawyer
to advise his client to disobey the client's statutory obligation. It is as simple
as that.” [Rochford 25.] “Accordingly, in all those circumstances the lawyer's
duty is first of all never to advise either the absence of a defence statement or
the omission from it of something which section 6A requires to be there
because of the way the trial is going to be conducted. The lawyer's duty is not
to give the defendant advice on what to do. The lawyer's duty is to explain
the statutory obligation that he has and to explain the consequences which
follow from disobedience of it.”
Advantages to the defence
By cooperating with the process, the defendant shortens the time needed for trial,
which normally means an earlier trial and therefore an earlier acquittal for the
innocent defendant. Focusing on the real issues in the case normally assists the
innocent defendant. Hearing evidence when it is fresh normally helps the court to
reach the right verdict. Where there is an irreparable weakness in the prosecution
case, then pointing this out can lead to either the withdrawal of the allegation or to
an early or immediate trial on the papers resulting in acquittal. Where the fault can
be remedied, but has not been pointed out by the defence as an issue, then it is likely
to delay matters when the case is adjourned for the necessary evidence (see below).
Disadvantages to the defence by not complying
1. [Richards LJ in CPS v Norwich para11.] “The case management process,
especially following the introduction of the Criminal Procedure Rules,
requires a greater level of cooperation between the parties than was once the
case. The real issues are required to be identified at an early stage. The rules
discourage a defendant from sitting on his hands in order to obtain a
procedural advantage. If he does seek to gain advantage from earlier economies of
participation...the court should act to correct it, not condone it.”
If a defendant fails to comply with the case management procedure, and in
particular fails to identify in advance an issue at the trial, then he will not only gain
no advantage from that stance, but the case is likely to be adjourned and the
increased costs would normally be paid by an unsuccessful defendant.
What we can do for defence lawyers
Work with them to ensure that the principles of SSSJ are complied with by the
prosecution, and in particular that the agreed papers should be available at
the first hearing where a plea of not guilty could reasonably have been
Work with HMCS and LSC to improve the timeliness of legal aid decisions.
Consider whether legal aid applications can be approved in court at the first
hearing, or at least an indication given as to whether the interests of justice
test is met.
Where the defence comply with the requirement to fully case manage at the
first hearing, but at trial the Crown through its own fault is required to ask for
an adjournment, weigh these two factors very heavily in the interests of
justice test. Be prepared to take robust decisions in the face of an application
to adjourn when the defence is ready for trial and has identified the issues at
the first hearing.
Where defence list case because of prosecution failings, give priority listing to
avoid defence waiting unnecessarily, or excuse defence attendance if
Give full credit for a plea of guilty at the first hearing.
Give full credit for a plea of guilty at a later hearing where the defendant
could not reasonably have been expected to indicate his plea before seeing the
prosecution evidence, but this was not available at the earlier hearing.
Consider ordering costs in favour of the defence where there is wasted time
because the Crown fails to comply with its obligations, and following up
those costs applications.
What we cannot do for defence lawyers
Accept that legal professional privilege entitles a defendant to fail to comply
with the case management process.
Refuse CPS applications for an adjournment where the defence has not
disclosed issues in the trial in advance.
Give full credit for a plea of guilty where the defendant could reasonably
have been expected to indicate his plea earlier, but waited to see the strength
of the prosecution evidence for us.
It is a central tenet of this initiative that it is normally more unjust to adjourn a trial,
particularly on the day of trial, than to proceed. An innocent defendant is entitled to
an early acquittal. Anxious witnesses and victims are entitled to be heard without
delay. The best route to a fair verdict is to hear the evidence when fresh.
However, we are not saying that an adjournment should never be granted. It is
always essential to consider all factors when considering whether it is in the interests
of justice to adjourn. One factor that we are highlighting is that the adjournment
culture needs to be broken. It is in the interests of the system as a whole that no party
attends court on the day of trial thinking that an application for an adjournment is
likely to succeed. There may come a time when applications to adjourn are rare and
each individual application can be considered on its own, without considering the
wider implications for the system of justice. Even before then there are special
situations where the court will want to consider the position with particular care.
What if the defendant fails to attend trial?
It is now the law that the trial should take place in the absence of the defendant
unless it appears to the court to be contrary to the interests of justice to do so (MCA
1980, s11 (1) (b). It is submitted that it will rarely be in the interests of justice to
adjourn when there is no solid explanation for the defendant's absence, and there is
no other reason for granting an adjournment. Where a reason is forthcoming, it
should normally be a simple matter to check that reason before starting the trial. If
the defendant is indeed absent involuntarily, for example because he is detained at a
prison or police station, or is in hospital, then it would not normally be in the
interests of justice to proceed. Remember, nevertheless, that if a trial proceeds in
absence, there may be an acquittal. An adjournment in those circumstances would
have been in nobody's interest. Remember also that if a defendant is convicted in
absence, and it later turns out that his absence was involuntary in the sense that he
was prevented from attending, then it will normally be in the interests of justice to
reopen the case under section 142, and fix another trial. Remember finally that if a
defendant is convicted in his absence, then there is a right to a retrial in the Crown
What if a defence witness fails to attend?
Case law on this subject has normally turned on specific facts, and will provide little
guidance to your case. Each case must be considered on its own facts and merits and
in the interests of justice.
When the defence apply for an adjournment because a defence witness has not
attended, all factors must be considered but the following are likely to be
How important is the witness to the defence case? The more central the
evidence to the disputed issue, the greater the importance of hearing the
Why has the witness not attended? If the defendant has done everything
possible to secure the witness’s attendance, including taking a statement from
him, providing proper details of the time and place of the hearing, and in
appropriate cases seeking a witness summons to compel attendance, then he
cannot be faulted for the failure of the witness to attend. This is an important
factor. Arrangements need to be made to hear the evidence (see below). If on
the other hand there is no statement, no warning to the witness to attend, and
no action taken to secure his witness’ attendance, then fault can be attributed
to the defendant. This is an important factor. After all, if a defendant through
his own negligence fails to attend trial, then almost certainly the case will
proceed in his absence. The same principle can apply where the defendant
fails to take proper steps to secure the attendance of a witness.
Can the case proceed part heard? It is submitted that this possibility should be
considered more frequently than in the past. It may be that there will be no
case to answer, or that the bench would acquit even in the absence of the
witness. In these circumstances an adjournment would have been a mistake.
Even if the bench needs to hear from a witness, that need occupy very little
court time at a future hearing. It may be inconvenient to the bench, or the
prosecutor, or the defence lawyer, or the defendant himself, but nevertheless
a part heard trial can often be accommodated at fairly short notice, before
other business begins (possibly of a list to be heard before a differently
constituted bench). This may be less than ideal. The defence advocate may
want to know what the witness says before cross-examining other witnesses.
The bench may need to come to court when not otherwise sitting. The
prosecution may prefer not to leave a gap between cross-examining the
defendant and hearing from his witness. However in almost all cases it will be
better than the alternative of sending witnesses away unheard to come back
on a later occasion. A witness summons should be considered.
Can the witness’s statement be admitted as hearsay? Again this is not
normally ideal but may be better than the alternatives. It might be particularly
appropriate where the witness gives peripheral evidence. Of course the bench
will be alert to the weight to attach to a hearsay statement from a witness who
has not been cross-examined.
What if the defence argue that the trial will not be article 6 compliant?
Summary trial is almost invariably article 6 compliant. That is because there is an
absolute right to a retrial in the Crown court if convicted in a magistrates’ court.
Naturally we all want a defendant to have a completely fair trial. We will do our best
in all circumstances to ensure that. We would all prefer both prosecution and
defence to be fully ready for trial on the first occasion a trial is listed. However,
where that does not happen, it will often be more unfair to adjourn than to continue.
What if the prosecution has failed to warn a witness?
This has been examined in the case law, for example in Balogan. If the prosecution is
at fault this is an important factor that weighs against granting an adjournment. As
always, all factors must be taken into account. However in many everyday cases the
prosecution may be required to proceed, even if the missing witness is central to
What if the prosecution has warned a witness in a timely way, but at the last
moment the witness is prevented from attending?
This happens. Sometimes there is a medical emergency. Sometimes there are
appalling weather conditions. Sometimes there are unavoidable transport failures.
Where the prosecution is not at fault, this is a factor in favour of an adjournment.
Even so, all factors must be taken into account. There is an injustice to an innocent
defendant in further delay. The court will want to consider whether it can proceed
without the witness. Perhaps it is a corroborating officer or someone who is
otherwise not central to the case. If the witness is not really disputed, then the
evidence can be admitted. It may be possible to take the witness out of turn, for
example concluding all the available evidence today, and adjourning until tomorrow
to hear one further witness. Remember it is a matter for the Crown whether they
wish to proceed without a witness. The defence cannot have it both ways. They
cannot say "we want the witness to cross examine but we are nevertheless opposed
to an adjournment".
What if the prosecution has warned the witness in a timely way, but the witness
has failed to attend and has provided no reason?
Again, the fact that the Crown is not at fault is a factor, but not the determining
factor. In some cases the Crown is able to proceed without the witness, and that
would normally be the best course. However in some cases the witness is central to
the prosecution case, for example a victim. Here it may be wise to allow time for
investigation to see what has happened to the witness. Perhaps there has been a
medical emergency on the way to court. Despite the need for progress, some leeway
must be given for those enquiries to be made.
However, should we examine our practice with witness summonses? It is notorious
in domestic violence cases that the complainant does not attend court. Similarly
when a key witness has many convictions, and dislikes coming to court. At the first
hearing the question of a witness summons should be raised, by the court if not by
the prosecution. In many domestic violence cases it is in the interests of justice for a
witness summons to be issued and served. Many victims find it easier to explain to
family that they had no choice but to attend court. It removes the idea that they are
responsible for the prosecution: they are simply a witness. However, one size does
not fit all and there may be occasions where a domestic violence complainant would
be deeply distressed to receive a witness summons. There is nothing to stop the
court issuing the summons in the interests of justice, and leaving it to the good sense
and judgement of the officer in the case whether to serve the summons. However if
the summons is not served, and the complainant does not attend and does not give a
reason, and then we suggest the court should be slow to adjourn. Similarly, if the
prosecution do not apply for a witness summons in circumstances where it is
foreseeable that a witness might not attend, then that will be a factor against
granting an adjournment.
What if it offends my sense of justice to refuse an adjournment?
Then grant the adjournment!
There will always be occasions when it is appropriate to grant an adjournment, even
if the party requesting it is at fault, and even where an adjournment causes delay
and/or distress to those who have attended court. For example we sometimes deal
with very serious or sensitive cases, such as motoring cases where death or serious
injury has occurred. There may be particularly vulnerable victims or a particularly
strong community interest in a particular trial taking place. To refuse an
adjournment where the inevitable result would be the collapse of such a trial may
well be unjust.
The real question to ask is how the case came to the day of trial when it was not fully
ready. The court must take its own share of the blame for this. It is important to fully
case manage at the first hearing. If at the case management hearing it is clear that the
court is dealing with a particularly sensitive case that is nevertheless not trial ready,
then further steps will need to be taken to ensure that it is made ready. Perhaps the
case progression officer (where there is one) or a legal adviser or even the bench
needs to assume responsibility for following through to make sure both sides are
fully trial ready. With limited resources it may not be possible or desirable to keep
every case under review; routine cases will need to be monitored by the parties
It is suggested that in every case where an adjournment is granted then there should
be a review to see whether the adjournment was necessary. If it was then the court
should look at its own process to see whether it could have managed the case better
and to pass on the lessons learned to the bench who conducted the initial case
What if in your area the practice is to adjourn to a case management hearing until
a later date, and it works well?
We are aware that this practice exists in some parts of the country, and we do not
want to interfere with a practice that works well. However we have considered and
rejected this model. First, it in effect wastes a hearing, as the parties are used to
nothing happening at the first appearance. Secondly, it inevitably builds in delay.
Thirdly, it is usually requires the Crown to produce evidence for matters that are not
in fact in dispute.
In our view cases should be fully case managed at the first hearing. Sometimes,
admittedly rarely, it is possible to go ahead with a short trial at that first hearing
(normally where the prosecution facts are not in dispute). Sometimes it is possible to
fix a very early trial, for example in domestic violence cases where only one witness
is needed. Sometimes the court identifies vulnerable victims, such as children, that
need special case management from the beginning. In most cases witnesses and the
court process benefit from an early trial date being provided, and all witnesses
warned at an early stage.
What if the defence ask for the first hearing to be adjourned so that a caution can
Is there really any advantage in this? Admittedly a caution rather than a conviction
will be recorded. However if it is a comparatively minor first offence, then the court
is likely to dispose of the case by way of a discharge anyway. And if the case is too
serious for a discharge, why is it in the interests of justice to adjourn for a caution?
Remember that any adjournment delays proceedings. Sometimes a case is
continually adjourned for a caution that, for whatever reason, it is not administered.
The defendant then has prolonged exposure to the criminal justice process when the
case could have been dealt with at the first hearing. Moreover, he or she will often be
on bail, with the risks that brings if the defendant fails to attend a subsequent
Protocol for the Provision of Advance Information, Prosecution
Evidence and Disclosure of Unused Material in Magistrates’ Courts:
This protocol was prepared by the office of the then Senior Presiding Judge for initial
use in pilots in 2006. Although the protocol was not formally adopted, it is included
here as an invaluable summary of the law on the provision of prosecution material.
As the introduction says, this topic is important but widely misunderstood. Some
key points are:
Provision of advance information is a duty that applies only to offences
triable either way. The duty can be complied with by provision of a summary.
There is no entitlement to be provided with all the actual prosecution
evidence at the first hearing. The requirement is for the defence to have
sufficient time to properly consider the evidence before it is called, and this
may be on the day of trial.
Disclosure of unused prosecution material is strictly governed by the CPI A.
The defence cannot make an application for specific disclosure without
complying with section 8 CPIA; including service of a defence statement
which must spell out in detail the nature of the defence.
The prosecution must disclose material only if it meets the appropriate test for
disclosure. Courts must not make directions for disclosure outside the
Third party disclosure can only be secured by complying with section 97
MCA 1980 by showing that the material is potentially admissible in evidence
in the proceedings and fishing expeditions must be discouraged. The
appropriate form must now be completed (See CPR 28.4).
There is nothing special about CCTV, which must be treated like any other
form of material. The practice of routinely providing crime reports and
records of emergency calls must cease. The practice of defence advocates
sending letters as a matter of routine asking for unused material must cease.