A real imbalance has developed in the Criminal Justice System. It is leading to delays and injustice. It is state sponsored and judicially ignored. And it has to be cured.
In the legal landscape of today the defendant is expected to make his decision on what plea to enter before he knows the case against him. If a defendant does not plead at the very first opportunity then she loses credit. This is rigorously enforced by a judiciary who have to deal with reduced sitting days and expanding court lists. The government mantra is “never mind the quality, feel the speed”.
A defendant who fails to mention something in interview? Evidence of their guilt. A defendant who fails to disclose something in their defence case statement? Evidence of their guilt. Fail to disclose the details of a witness? Potentially evidence of their guilt.
But what of the Prosecution? Yes I know the Prosecution have the whole burden and standard of proof thing to overcome. And I appreciate that some custody time limit issues can be tiresome. However in the more recent raft of directions and legislation aimed at expedition the Prosecution have little at stake when it comes to their case preparation.
The other day I appeared in a PCMH where the Prosecution had served the papers the day before the hearing. It was pointed out that they were, in fact, only ten days late and, in the current climate, that was actually pretty good. And no one demurred from that observation. Ten days was, in the generality of things, a short delay. The Judge observed that the situation was “lamentable” and adjourned the PCMH. What else happened? Nothing. Counsel for the Crown gets a whole four days to suggest edits to the videoed witness interview and the defence have three weeks to prepare for trial.
It is the norm, not the exception, that the papers are served late. Judges used to insist on adjourning PCMHs in Manchester if there was no defence case statement. Now there simply is not time for one to be prepared so that particular direction is now forgotten. If it were to be enforced there is barely a PCMH that would go ahead.
It is not just the practicalities of getting the case moving where problems occur. Not only is there an indecent distinction between the alacrity expected of the defendant and the tolerated sloth of the Crown but the Prosecution are allowed to make decisions about what goes to trial without any check built into the system. I am not particularly dealing with trials that look like losers but the decision not to accept reasonable pleas.
The reality is those decisions can be taken with impunity. Occasionally you may get a grumpy judge demanding that the lawyer comes to court. However the system does nothing to encourage sensible and pragmatic decision taking. What is the answer? Costs? Well that is just moving money around. The idea is to try to get the system to be more efficient and thereby save costs. In any event the wasted cost provisions have been rendered toothless to deal with inefficiency. Perhaps a defendant who is only convicted of what he pleads to or has offered to plead to after there has been a trial gets 50% credit. Or the days between the offer and the verdict count towards their sentence. Perhaps an element of Mitchell creeping into crime – if the evidence is not served the Crown cannot rely upon it.
Probably crazy ideas but something has to be done. If you want a car to go faster you do not fuel inject only one of the cylinders. If the Government were really serious about speeding up justice for victims and introducing cost saving efficiency, the Prosecuting authorities would also be subject to effective sanction.