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Review of the
SIR ROBIN AULD'S SUMMARY OF HIS REVIEW REPORT
[This summary consists of paras 2 -21 of Chapter 2 of his Review Report]
The Criminal Justice System
A unified Criminal Court
Decriminalisation and alternatives to conventional trial
Preparing for trial
The Trial: procedures and evidence
The criminal law should be codified under the general oversight of a new Criminal Justice Council and by or with the support as necessary of the Law Commission. There should be codes of offences, procedure, evidence and sentencing.
The Criminal Justice System
A national Criminal Justice Board should replace all the existing national planning and 'operational' bodies, including the Strategic Planning Group, and the Trial Issues Group. The new Board should be the means by which the criminal justice departments and agencies provide over-all direction of the criminal justice system. It should have an independent chairman and include senior departmental representatives and chief executives of the main criminal justice agencies (including the Youth Justice Board) and a small number of non-executive members. At local level, Local Criminal Justice Boards should be responsible for giving effect to the national Board's directions and objectives and for management of the criminal justice system in their areas. Both the national and local Boards should be supported by a centrally managed secretariat and should consult regularly with the judiciary. The national Board should be responsible for introducing an integrated technology system for the whole of the criminal justice system based upon a common language and common electronic case files, the implementation and maintenance of which should be the task of a Criminal Case Management Agency accountable to the Board.
A Criminal Justice Council, chaired by the Lord Chief Justice or senior Lord Justice of Appeal, should be established to replace existing advisory and consultative bodies, including the Criminal Justice Consultative Council and the Area Strategy Committees. It should have a statutory power and duty to keep the criminal justice system under review, to advise the Government on all proposed reforms, to make proposals for reform and to exercise general oversight of codification of the criminal law. The Council should be supported by a properly resourced secretariat and research staff.
A unified Criminal Court
The Crown Court and magistrates' courts should be replaced by a unified Criminal Court consisting of three Divisions: the Crown Division, constituted as the Crown Court now is, to exercise jurisdiction over all indictable-only matters and the more serious 'either-way' offences allocated to it; the District Division, constituted by a judge, normally a District Judge or Recorder, and at least two magistrates, to exercise jurisdiction over a mid range of 'either-way' matters of sufficient seriousness to merit up to two years' custody; and the Magistrates' Division, constituted by a District Judge or magistrates, as magistrates' courts now are, to exercise their present jurisdiction over all summary matters and the less serious 'either-way' cases allocated to them. The courts, that is those of the Magistrates' Division, would allocate all 'either-way' cases according to the seriousness of the alleged offence and the circumstances of the defendant, looking at the possible outcome of the case at its worst from the point of view of the defendant and bearing in mind the jurisdiction of each division. In the event of a dispute as to venue, a District Judge would determine the matter after hearing representations from the prosecution and the defendant. The defendant would have no right of election to be tried in any division. (In the event of the present court structure continuing, the defendant should lose his present elective right to trial by jury in 'either-way' cases; see paragraph 9 below.)
Whether or not the Crown Court and magistrates' courts are replaced with a unified Criminal Court, there should be a single centrally funded executive agency as part of the Lord Chancellor's Department responsible for the administration of all courts, civil, criminal and family (save for the Appellate Committee of the House of Lords), replacing the present Court Service and the Magistrates' Courts' Committees. For the foreseeable future, circuit boundaries and administrations should remain broadly as they are and the courts should be locally managed within the circuits and the 42 criminal justice areas. Justices' clerks and legal advisers responsible to them should continue to be responsible for the legal advice provided to magistrates.
Magistrates and District Judges should continue to exercise their established summary jurisdiction and the work should continue to be allocated between them much as at present. If my recommendation for the establishment of a new unified Criminal Court with a District Division is adopted, they should also sit together in that division exercising its higher jurisdiction. I do not recommend any further extension of justices' clerks' case management jurisdiction. Steps should be taken to provide benches of magistrates that more broadly reflect the communities they serve. In order to strengthen the training of magistrates, the Judicial Studies Board should be made responsible, and be adequately resourced, for devising and securing the content and manner of their training.
Jurors should be more widely representative than they are of the national and local communities from which they are drawn. Qualification for jury service should remain the same, save that entitlement to, rather than actual, entry on an electoral role should be a criterion. Potential jurors should be identified from a combination of a number of public registers and lists. While those with criminal convictions and mental disorder should continue to be disqualified from service, no one in future should be ineligible for or excusable as of right from it. Any claimed inability to serve should be a matter for discretionary deferral or excusal. Provision should be made to enable ethnic minority representation on juries where race is likely to be relevant to an important issue in the case.
The law should not be amended to permit more intrusive research than is already possible into the workings of juries, though in appropriate cases trial judges and/or the Court of Appeal should be entitled to examine alleged improprieties in the jury room. The law should be declared, by statute if need be, that juries have no right to acquit defendants in defiance of the law or in disregard of the evidence.
- The defendant should no longer have an elective right to trial by judge and jury in 'either-way' cases. The allocation should be the responsibility of the magistrates' court alone and exercisable where there is an issue as to venue by a District Judge. The procedures of committal for trial and for sentence in 'either-way' cases should be abolished. Under my recommendation for a unified Criminal Court with three divisions, matters too serious for the Magistrates' Division would go direct either to the District or Crown Division depending on their seriousness. In the meantime 'either-way' cases for the Crown Court should be "sent" there in the same way as indictable-only. Trial by judge and jury should remain the main form of trial of the more serious offences triable on indictment, that is, those that would go to the Crown Division, subject to four exceptions. First, defendants in the Crown Court or, if my recommendation for a unified Court with three divisions is accepted, in the Crown and District Divisions, should be entitled with the court's consent to opt for trial by judge alone. Second, in serious and complex frauds the nominated trial judge should have the power to direct trial by himself and two lay members drawn from a panel established by the Lord Chancellor for the purpose (or, if the defendant requests, by himself alone). Third, a youth court, constituted by a judge of an appropriate level and at least two experienced youth panel magistrates, should be given jurisdiction to hear all grave cases against young defendants unless the charges are inseparably linked to those against. Fourth, legislation should be introduced to require a judge, not a jury, to determine the issue of fitness to plead.
- The current hierarchy of judges and their jurisdictions should continue, subject to my recommendations for the establishment of a District Division of a new unified Criminal Court and extension of the powers of District Judges and magistrates when sitting in it. Systems of judicial management and deployment should be strengthened and also made more flexible to enable a better match of High Court and Circuit Judges to criminal cases, proper regard also being given to the arrangements for civil and family justice. In particular, there should be a significant shift in heavy work from High Court Judges to the Circuit Bench, coupled with greater flexibility in the system for allocating work between them. Save in the case of Circuit Presiding Judges, the present rigid circuiteering pattern of High Court Judges should be replaced by one in which they travel out to hear only the most serious of cases. In implementing the recent recommendations for reforms in the system of appointing judges, the Lord Chancellor's Department should exercise vigilance to root out any indirect discrimination, hurry forward the substitution of assessment exercises for short interviews and establish and publish a clear policy for the appointment of disabled persons to judicial office. There should be a strengthening in the training provided to judges, appropriately enlarging the Judicial Studies Board's role for the purpose. There should be a system of appraisal for all part-time judges, and consideration should be given to the appraisal of full-time judges.
Decriminalisation and alternatives to conventional trial
I have found little scope or justification for decriminalisation of conduct that Parliament has made subject to penal sanctions. There should, however, be greater use of a system of fixed penalty notices subject to a right of challenge in court, for example for television licence evasion and the existing provisions for road traffic offences. There is no compelling case at present for the creation of any specialist courts, in particular, drugs or domestic violence courts. Consideration should be given to the wider use of conditional cautioning or 'caution-plus' alongside existing and future restorative justice schemes, for which a national strategy should be devised. Once the Financial Services Authority has assumed full responsibility for supervision in the financial services field, consideration should be given to transferring appropriate financial and market infringements from the criminal justice process to the Authority's regulatory and disciplinary control. Consideration should also be given in this field for combining parallel criminal and regulatory proceedings. Preparatory work should be undertaken with a view to removal of all civil debt enforcement from courts exercising a criminal jurisdiction.
Preparing for trial
The key to better preparation for, and efficient and effective disposal of, criminal cases is early identification of the issues. Four essentials are: strong and independent prosecutors; efficient and properly paid defence lawyers; ready access by defence lawyers to their clients in custody; and a modern communications system. All public prosecutions should take the form of a charge, issued without reference to the courts but for which the prosecutor in all but minor, routine or urgent cases, would have initial responsibility. It should remain the basis of the case against a defendant regardless of the court which ultimately deals with his case, thus replacing the present mix of charges, summonses and indictments. A graduated scheme of sentencing discounts should be introduced so that the earlier the plea of guilty the higher the discount for it. This should be coupled with a system of advance indication of sentence for a defendant considering pleading guilty.
The scheme of mutual disclosure established by the Criminal Procedure and Investigations Act 1996 should remain, but subject to the following reforms: its expression in a single and simply expressed instrument; a single and simple test of materiality for both stages of prosecution disclosure; automatic prosecution disclosure of certain documents; removal from the police to the prosecutor of such responsibility as the police have for identifying all potentially disclosable material; and encouragement, through professional conduct rules and otherwise, of the provision of adequate defence statements. There should be a new statutory scheme for third party disclosure and for instruction by the court of special independent counsel in public interest immunity cases where the court considers prosecution applications in the absence of the defendant.
In the preparation for trial in all criminal courts, there should be a move away from plea and directions hearings and other forms of pre-trial hearings to cooperation between the parties according to standard time-tables, wherever necessary, seeking written directions from the court. In the Crown and District Divisions and, where necessary, in the Magistrates' Division, there should then be a written or electronic 'pre-trial assessment' by the court of the parties' readiness for trial. Only if the court or the parties are unable to resolve all matters in this way should there be a pre-trial hearing before or at the stage of the pre-trial assessment. The courts should have a general power to give binding directions and rulings either in writing or at pre-trial hearings. In the Crown and District Divisions and, where necessary, in the Magistrates' Division, following the pre-trial assessment and in good time before hearing, the parties should prepare, for the approval of the judge and use by him, them, and the jury in the hearing, a written case and issues summary setting out in brief the substances of charge(s) and the issues to be resolved by the court.
The Trial: procedures and evidence
In trials by judge and jury, the judge, by reference to the case and issues summary, copies of which should be provided to the jury, should give them a fuller introduction to the case than is now conventional. The trial should broadly take the same form as at present, though with greater use of electronic aids in appropriate cases. The judge should sum up and direct the jury, making reference as appropriate to the case and issues summary. So far as possible, he should 'filter out' the law and fashion factual questions to the issues and the law as he knows it to be. Where he considers it appropriate, he should require the jury publicly to answer each of the questions and to declare a verdict in accordance with those answers.
In trials by judge and magistrates in the District Division, the judge should be the sole judge of law, but he and the magistrates should together be the judges of fact, each having an equal vote. The order of proceedings would be broadly the same as in the Crown Division. The judge should rule on matters of law, procedure and inadmissibility of evidence in the absence of the magistrates where it would be potentially unfair to the defendant to do so in their presence. The judge should not sum up the case to the magistrates, but should retire with them to consider the court's decision, which he would give and publicly reason as a judgment of the court. The judge should be solely responsible for sentence.
There should be a comprehensive review of the law of criminal evidence to identify and establish over-all and coherent principles and to make it an efficient and simple agent for securing justice. Subject to such review, I consider that the law should, in general, move away from technical rules of inadmissibility to trusting judicial and lay fact finders to give relevant evidence the weight it deserves. In particular, consideration should be given to the reform of the rules as to refreshing memory, the use of witness statements, hearsay, unfair evidence, previous misconduct of the defendant, similar fact evidence and the evidence of children. There should be reforms to strengthen the quality and objectivity of expert evidence and improve the manner of its presentation both from the point of view of the court and experts, following in some respects reforms made in the civil sphere by the Civil Procedure Rules. Urgent steps should be taken to increase the numbers and strengthen the quality of interpreters serving the criminal courts and to improve their working conditions. There are a number of ways in which the facilities and procedures of the courts should or could be modernised and better serve the public. The criminal courts should be equipped with an on-line sentencing information system.
There should be the same tests for appeal against conviction and sentence respectively at all levels of appeal, namely those applicable for appeal to the Court of Appeal. There should be a single line of appeal from the Magistrates' Division (Magistrates' Courts) and above to the Court of Appeal in all criminal matters. This would involve: 1) abolition of appeal from magistrates' courts to the Crown Court by way of rehearing and its replacement by an appeal to the Crown Division (Crown Court) constituted by a judge alone; and 2) abolition of appeal from magistrates' courts and/or the Crown Court to the High Court by way of a case stated or claim for judicial review and their replacement by appeal to the Court of Appeal under its general appellate jurisdiction enlarged if and to the extent necessary.
I support the general thrust of the Law Commission's recommendations for the introduction of statutory exceptions to the double jeopardy rule, save that a prosecutor's right of appeal against acquittal should not be limited to cases of murder and allied offences, but should extend to other grave offences punishable with life or long terms of imprisonment. There should be provision for appeal by the defence or the prosecution against a special verdict of a jury which on its terms is perverse; see para 15 above.
The Court of Appeal should be reconstituted and its procedures should be improved to enable it to deal more efficiently with, on the one hand appeals involving matters of general public importance or of particular complexity and, on the other, with 'straightforward' appeals. The law should be amended: to widen the remit of the Sentencing Advisory Panel to include general principles of sentencing, regardless of the category of offence; and to enable the Court of Appeal to issue guidelines without having to tie them to a specific appeal before it.
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