Transforming criminal justice: a response to the Lord Chief Justice’s proposals

Posted on 25th Mar 2014 in Legal Profession

By Tim Thomas, 1 Pump Court

In his speech to Justice on 3rd March 2014 Lord Thomas of Cwmgiedd CJ addressed what he sees as the challenge of ensuring the quality of justice is not diminished by the cuts to Legal Aid when those cuts are likely, he suggested, to remain permanent.  Putting aside any challenge to his conclusion about the permanence of the cuts, in his speech he did address areas of reform which need careful consideration by Solicitors and Bar.

Information technology

One example was the suggestion that ‘IT changes…could bring virtual preliminary hearings’.  If, and I throw my own challenge down to the Government and Senior Judiciary, engagement from the legal profession is really what is wanted, might it not be good idea to ask Barristers and Solicitor-Advocates what they think of such a suggestion ?

I believe that I speak for many at the Criminal Bar when I say that spending money on IT for virtual preliminary hearings and having virtual hearings is a complete waste of money. Preliminary hearings serve no purpose. All that happens is that the Crown attend and give a date for when they will serve their papers, a date that is determined by statute as 60 days from the sending of the case from the Magistrates’ Court: no hearing is necessary for that. Abolishing preliminary hearings is the most radical and cost effective approach. Given that Government departments have a lamentable track record in obtaining high quality cost effective IT, I remain very sceptical that in this age of austerity (for Legal Aid at least) it is worth considering. The Lord Chancellor is spending £80m on digitising the courts but at Kingston CC the WiFi only works in the robing room, at Isleworth CC the only mobile phone network that works is 02 and at Basildon CC there is only one microwave in the custody suite – addressing these problems will save money and speed up justice in a much shorter period of time than the inevitably botched IT procurement exercise the Government will undertake.

Juries and Fraud Cases

One topic that the Lord Chief Justice raised really did surprise me and that was something that seems to rear its head every 12-15 years: juries and fraud cases. As a member of what is unofficially called the VHCC Bar, having undertaken VHCC Serious Fraud work exclusively for 8 years, I was most interested in what the Lord Chief Justice had to say about fraud trials:

‘Fraud investigations and trials are still far too slow and immensely expensive…. not enough prosecutions are brought…..Should we not look radically again at disclosure and the mode of trial?’

The broad thrust of this assertion is that removing juries from fraud trials and replacing them with judges and assessors needs serious consideration and that the number of fraud investigations/prosecutions needs to rise for London to remain a credible financial centre.   He is right that where investigations/prosecutions are concerned England & Wales does not compare favourably with the United States or other common law jurisdictions in terms of the robustness of the Regulators in investigating, preventing and ultimately prosecuting fraud. It is staggering how often investigations into very serious financial conduct are quietly shelved. Unfortunately the only real solution to this is bigger budgets for the SFO, FCA, OFT and City of London Police and that does not sit with the MoJ’s austerity line. Although austerity was forgotten when the SFO went cap in hand to the Treasury to ask for more funds two months ago.

But is he right in saying that ‘trials are still far too slow and immensely expensive…’ and that a possible solution is removing juries from them? If we put aside objection to this proposition based purely in a belief in Lord Devlin’s maxim that ‘trial by jury… is the lamp that shows that freedom lives…’ (8th Hamlyn Lecture, “Trial by Jury” (1956), at p. 164) – that is another article on its own – would non-jury trial for serious fraud be less expensive? My answer is a categorical no. There is clearly no monetary saving for the court in terms of the cost of the tribunal because Crown Court judges and assessors would have to be salaried, and to a degree far in excess of the daily allowance given to jurors.  Superficially it is hard to argue against the fact that it may take a jury of 12 people longer to discuss their findings than a judge and two assessors but since such discussion during takes place away from the courtroom, allowing it to be used for other cases while deliberation takes places, any savings in court time are marginal. I would suggest that, whether the tribunal is 3 or 12 people, deliberation time is primarily determined by the volume of evidence in the case. Is it therefore as simple as saying to both Crown and Defence that the volume of evidence needs to be streamlined?

In complex frauds there is a limit to how basic prosecuting counsel can make the presentation of his/her case without it undermining what the allegation is or negatively effecting the presentation of it. Of course many allegations do ultimately boil down to a determination of whether an act was dishonest or not but much of that determination will depend on a view taken by the Jury of other facts – how a company was set up, who it employed, was it an honest enterprise at the start.  Many steps are already taken by Crown and Defence to ensure that jury and judge are not overburdened by material, electronic and printed, including agreeing admissions, having evidence read, providing short summaries of long no-comment interviews, giving time estimates for examination-in-chief and cross-examination such that I do not think that much more can be done by the advocates.

Robust case management

What can be done is the exercise of more robust case management. My experience is that sadly some of the lessons of Blue Arrow and Jubilee Line have not been learned by the judiciary.  The Criminal Procedure Rules are there to be used but are undermined because sanctions for non- compliance by Defence or Prosecution are not handed down.  I have appeared in a number of fraud cases over the last five years in which the judge has allowed the Crown, despite several hundred admissions and/or detailed agreed facts, to lead evidence through live witnesses of those admissions and agreed facts, adding days if not weeks to the length of trial. Judges have the power to stop this and they should be exercising it.

Another common problem is the late service of evidence by the Prosecution. Understandably given the nature of the allegations complex fraud cases material is often sought from financial institutions overseas and takes months if not years to arrive via the LOR (letter of request) procedure. Sometimes that is the fault of the foreign jurisdiction and sometimes that is the fault of the Prosecution in not giving sufficient thought and resources to the obtaining of the material during the investigation stage. Near the start of the trial the Defence usually seek a ruling from the court about a ‘cut- off’ date after which the Prosecution will not be allowed to rely on new evidence. The judge agrees but usually fudges the ruling with the allowance of the Prosecution to seek permission to do so should new evidence they wish to rely on arrive.   Trials have and will continue to be aborted or delayed by Judges allowing the Prosecution to ‘have their cake and eat it’. Whilst the safety valve of allowing permission after a ‘cut-off’ date looks sensible, if the Prosecution’s case in a serious fraud trial needs bolstering at a late stage it has a credibility problem to start with.  Whilst I have mentioned the use of time estimates for examination-in-chief and cross-examination the insistence on them is not universal by Judges and it should be.

Factual summing up

If I can be radical, as the Lord Chief Justice was suggesting to his audience they need to be, may I suggest that serious consideration be given to removing from judges the function of summing up the facts to the jury?  It has always been odd and anomalous, since Judges are not finders of fact in a criminal trial, that they are allowed to summarise the evidence presented, with the inevitable emphasis, no matter how impartial they are, on certain facts rather than others because of their view of the evidence. The effect of this would be two-fold.

Firstly it would save court time. In a recent fraud trial had the judge confined himself to setting out the law only, two and a half days would have been saved.

Secondly further time would be saved from jury deliberation because the jury would not need to consider the judge’s summary of the evidence.

Thirdly and finally the inevitable imbalance between the Prosecution case and the Defence case that often appears in a summing up would disappear at a stroke resulting in fewer appeals – an attractive saving in time and money for the Court of Appeal and for Defence counsel drafting for free.

Disclosure

Are there savings to be made in disclosure?  Complex fraud investigations generate large amounts of disclosure and while this does have cost implications (lessened now to some extent by electronic disclosure) I do not believe that any experienced fraud practitioners would say serious retrenchment was healthy or desirable. The lessons from the collapse of the iSoft re-trial last summer and the disturbing revelations from the Ellison Report are a timely reminder that despite the obligations of the Criminal Procedure and Investigations Act 1996, mistakes are still being made by the Prosecution.  Were the Prosecution to do what I have heard many a Crown Court judge urge and stick to their best points at the investigation stage it would undoubtedly result in the need to seize and later have to disclose less unused material.  Again that requires greater resources invested in the investigation stage.

Advocates’ fees

And what of advocates’ fees? Are we too expensive? The Government seems to think so and enacted a 30% cut on hourly rates for preparation for VHCCs  in December 2013. As someone privileged enough to have done my first VHCC in 2006 and my last in 2013 (I returned my junior brief in Operation Cotton when the 30% cut was finalised) I know that for undertaking the same complexity of work the Government was suggesting I accept  an hourly rate that was 36% lower than my first VHCC. That 36% reduction is before factoring in inflation. Moreover in 2006 the reading rates were reasonable, if not excessively generous, at 1.5 minutes per page for exhibits and 2.5 minutes per page for witness statements. Now the rates are 0.5 minutes per page for exhibits and 2 minutes per page for witness statements, which is risible. So what the Government has done is slash hourly rates and also reduce the amount of time allowed to read the case papers.  If one adds in the fact that 40 day trials were taken out of the VHCC scheme 3 years ago it is no wonder that the cost of VHCCs has fallen from around £120m in 2009/10 to just £67.6m in 2012/13 or about what it costs to run the National Health Service for 4 hours.  I wonder with the Lord Chief Justice’s background in Commercial Civil Fraud whether he believes that Criminal Advocates fees are the problem? I suspect not.

 

Tim Thomas is a barrister specialising in Commercial Criminal Fraud from 1 Pump Court Chambers.