APPENDIX 9
Memorandum submitted by the Legal Action
Group (CJSB 23)
The Legal Action Group is a national charity
committed to improving access to justice, particularly for the
vulnerable and the socially excluded. LAG works with lawyers and
advisers to improve standards and knowledge of social welfare
and criminal law amongst practitioners, by publishing legal handbooks
and a monthly magazine, and providing training for lawyers and
advisers. We also comment and campaign extensively on social welfare
and criminal law issues, on administration of justice and on the
delivery of publicly funded legal services. LAG does not represent
any particular interest group: our primary concern is with quality
and access to justice for the users and potential users of legal
services and the courts.
LAG welcomes the opportunity of submitting written
evidence to the Committee's enquiry on the Criminal Justice and
Sentencing bill. In accordance with the Committee's request, we
have restricted the length of this submission to a bare summary
of our views. However, we would be happy to expand on any particular
points if the Committee asks us to do so.
1. POLICE
POWER TO
IMPOSE CONDITIONS
ON A
SUSPECT'S
BAIL BEFORE
CHARGE
LAG's view is that giving police powers to impose
bail conditions before charge would be acceptable, but only if
these powers were subject to a maximum time limit. There should
also be adequate judicial safeguards, with express provision for
legal aid to allow challenges to bail conditions imposed. Otherwise,
suspects might be caught by serious delays, especially if the
decision on charging moves from the police to the Crown Prosecution
Service.
2. REFORMS
TO THE
RULES OF
EVIDENCE
(i) Previous misconduct: It is not
clear exactly what changes are intended, apart from putting the
existing common law "similar fact" rule onto a statutory
footing. This rule already allows evidence of previous misconduct
to be admitted, but the judge must assess whether the probative
value of the evidence is sufficiently great to outweigh its prejudicial
effect.
The white paper suggests that the judge should be
able to decide whether the previous convictions are "sufficiently
relevant". If the courts were to be left to decide the meaning
of relevance, then LAG would not object to the proposed legislation.
However, if relevance were to be given a statutory definition
wider than in the present common law rule, we would be very concerned
about the extent to which this would undermine judicial discretion.
A wider definition would also be likely to increase the number
of trials where the prosecution tried to use such evidence, and
would lead to a corresponding increase in the length of trials
as the defence tried to challenge admissibility, and/or adduce
evidence to disprove that the alleged misconduct took place.
(ii) Hearsay evidence: We do not agree
that hearsay evidence should be made more readily admissible,
as in the civil courts. In criminal proceedings, the prosecution
is required to prove its case beyond reasonable doubt, and a defendant
may well face loss of liberty as a result of conviction. This
is very different to a party facing liability in a civil claim.
At present, hearsay evidence is only admitted at the discretion
of the court, because the source of the statement is not available
for cross-examination. The court's discretion to exclude hearsay
evidence is an important protection, and the case for now removing
it has not been made out.
(iii) Disclosure: We strongly disagree
with the proposal that the defence should be required to make
advance disclosure of its witness list. Within an adversarial
system, there are principled reasons why it is inappropriate to
import civil style procedures into criminal proceedings. We also
foresee several reasons why this proposal would be unworkable
in practice.
Likewise, we disagree with the proposal that
the defence should be required to disclose unused expert witness
reports. There may be good reasons why an undisclosed report has
been obtained by the defence, including assisting cross-examination.
The prosecution, on the other hand, has easy access to expertise
for this purpose.
Our views on both these points are set out in
more detail in our response to the Home Office, dated 16th September,
which is attached (not printed).
On the broader question of the current disclosure
regime, we object to the white paper's suggestion that measures
need to be taken to reduce "tactical manoeuvring by the defence".
The report by Plotnikoff and Woolfson, A fair balance? Evaluation
of the operation of disclosure law' (2001) found widespread evidence
of poor practice by the police and the CPS, and an absence of
consensus about what disclosure can be reasonably demanded from
the defence. Before any further changes are introduced, the concerns
of this report should be fully considered, and an assessment made
of the impact of changes introduced by the Attorney General's
recent guidelines.
3. ADVANCE
INDICATION OF
SENTENCE DISCOUNTS
FOR EARLY
GUILTY PLEAS
We have serious concerns about this proposal,
both on matters of principle and because of practical consequences.
— It would effectively penalise defendants
who wanted to exercise their right to put the prosecution to proof.
It is also likely to put pressure on innocent defendants to plead
guilty, despite the safeguards suggested by the white paper.
— It would undermine the principled
approach to sentencing advocated elsewhere in the white paper;
this, in turn, is likely to lead to widespread public confusion
and dissatisfaction—particularly for victims.
— The "plea before venue"
procedure currently requires either-way defendants to give an
indication of plea before magistrates take any decision on trial
venue. This procedure would effectively be displaced by early
sentence indications, since it is highly unlikely that defendants
would be willing to enter a plea until they know the probable
sentence for a plea of guilty.
— The white paper accepts that early
indications in the magistrates' court would require consideration
of all relevant information, including previous convictions. Presumably
mitigation factors would also need to be taken into account. This
would increase the burden on magistrates in the early stages of
a case, leading to limited overall saving in court time.
— Without adequate safeguards, routine
discounts for an early guilty plea might well lead to "over-charging"
by the prosecution, in an attempt to secure an outcome similar
to an undiscounted sentence for the lesser charge.
4. EXTENSION
OF MAGISTRATES'
SENTENCING POWERS
We do not think that the consequences of this
proposal have been properly considered and we believe that a number
of problems would arise:
— Extending the maximum custodial sentence
available to magistrates would increase the uncertainty facing
either-way defendants in the magistrates' court, giving them a
perverse incentive to elect trial by jury. This is the reverse
of the Government's intention and would undermine the effect of
abolishing committals for sentence.
— Increasing magistrates' sentencing
powers would exacerbate the inconsistency that already exists
between the sentencing practices of different magistrates' courts.
— There is a danger of an overall,
upward drift in the severity of magistrates' sentencing as a result
of increasing their powers. Defendants sent by magistrates to
the Crown Court for trial or for sentence after conviction often
receive a non-custodial punishment or a custodial term that would
have been within magistrates' own powers. This suggests that,
if magistrates' have increased powers but are no longer able to
commit defendants to the Crown Court for sentence, they will be
tempted to use the more serious penalties available to them. This
would increase prison overcrowding and would be contrary to the
Government's objective of reducing the use of short custodial
sentences.
If magistrates' sentencing powers must be increased,
LAG strongly urges the Government to delay implementing this until
the proposed Sentencing Guidelines Council is fully operational.
There should also be national rollout of the new sentencing framework
endorsed by the white paper. This would limit magistrates to "custody
plus" of up to twelve months—consisting of up to three
months' custodial sentence served in full, followed by a maximum
of nine months' supervision in the community.
5. REMOVING
RIGHT TO
JURY TRIAL
FOR FRAUD
AND OTHER
COMPLEX CASES
LAG disagrees with this proposal, for the following
reasons.
— To create an idea in the public mind
that certain cases are inappropriate for juries would have the
effect of undermining public commitment to this aspect of citizenship.
— In fraud trials, the jury's fact-finding
role is usually central to the case; as in any case involving
dishonesty, whether the accused is telling the truth about his/her
intentions is often the key issue in deciding culpability.
— With so few cases affected by such
a change, it is difficult to see how criteria for directing judge-only
trials could be operated consistently.
— Singling out a small number of cases
for different treatment would give the impression of unfairness
and may generate challenges under the Human Rights Act 1998.
— The Law Commission's proposals for
simplification of the law on fraud, creating a single offence,
should be given careful consideration before any changes are made
to mode of trial.
— To the extent that there are problems
in trials of fraud and other complex cases, these could be addressed
by improving case management; by allowing judges to provide juries
with a written note of the issues in the case (as suggested in
the white paper); and by implementing improved conditions for
jurors—including better compensation for loss of earnings
and other expenses
However, LAG believes that the option of trial
by judge alone should be given to all Crown Court defendants.
In some cases, especially where there has been adverse publicity
or public revulsion, the defendant may find this mode of trial
preferable. Equally, the defendant should retain the right to
be tried by jury, without being at risk of greater costs penalties
as a result of this decision.
6. REMOVAL
OF RESTRICTIONS
ON DRAWING
INFERENCES FROM
STATEMENTS
LAG disagrees with the proposal to remove restrictions
on the jury being invited to draw inferences from discrepancies
between the pre-trial defence statement and the defence case at
trial. It is not at all clear why the existing provisions need
to be expanded, and in particular why leave of the court would
no longer be required before comments on the discrepancy are made
by one of the parties. This proposal also ignores the implications
of recent research findings on disclosure (Plotnikoff and Woolfson,
cited above).
7. RELAXATION
OF THE
DOUBLE JEOPARDY
RULE
LAG accepts that there are some attractions
in the argument that limited classes of acquittals could be subject
to retrial. However, we are not satisfied that the proposals adequately
deal with the inherent problems. Even with the protections and
safeguards proposed by the white paper, we believe that this issue
should be approached with the greatest of caution.
— At any retrial, there would effectively
be a presumption of guilt, because the jury would be aware of
the Court of Appeal's assessment that the new evidence was "compelling".
— By giving the prosecution the possibility
of two bites of the cherry, there is a danger that the police
would be less efficient in their investigations.
— Acquitted defendants would be exposed
to the ongoing possibility of a retrial, and even to harassment
by the police or prosecution.
— Allowing finality following acquittal
is in the public interest, as well as in the interests of the
defendant.
— There is a danger that unreliable
or false evidence—for example, confessions or old and contaminated
physical evidence—could be used to persuade the court to
allow a retrial.
— We are particularly unhappy with
the proposal that this change would be retrospective in effect.
— We fear that the initial relaxation
of the rule for serious offences would, in time, soften up public
opinion for an extension of this change to all offences. In effect,
no acquittal would then be final.
8. INTRODUCTION
OF "CUSTODY
MINUS", "CUSTODY
PLUS", AND
INTERMITTENT CUSTODY
SCHEMES
LAG does not claim to have a particular expertise
on the issue of sentencing. However, we are broadly in support
of the framework proposed in the Halliday report and endorsed
by the white paper, and welcome the emphasis on community-based
approaches. It is very disappointing that the Treasury is not
yet making available the resources for a national rollout of "custody
plus". As noted above, we believe it would be a serious mistake
to increase magistrates' sentencing powers until "custody
plus" is fully operational.
9. REFORM
OF THE
YOUTH COURTS
LAG does not agree that young defendants charged
with serious cases should lose the possibility of having their
cases tried by jury. The white paper's preferred option would
lead to inconsistency in the treatment of adult co-defendants,
with some cases being sent for jury trial and others for trial
by a specialist youth panel. We also foresee a number of other
difficulties if grave cases involving young defendants were to
be tried in an enhanced youth court.
— This move could set an unwelcome
precedent for other groups of defendants who are also vulnerable—for
example, those with mental health problems.
— There would be practical problems
in finding lay magistrates to sit on such panels, especially for
murder trials which can last several weeks. In reality, grave
cases would have to be heard by a High Court judge sitting with
two District Judges.
— If a trial takes place before a panel
consisting only of specialists, the language used by advocates
is likely to be less easy for young defendants to follow, making
the trial more intimidating.
LAG would instead support the setting up of
a Youth Court Division of the Crown Court, with less formal proceedings
and specially trained judges. Trials could take place in private,
perhaps with a limited press presence. This proposal would allow
an appropriate mode of trial for young defendants but would also
allow adult co-defendants to face trial by jury.
November 2002
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