Paul Morris, Ellen Peart and David Hardstaff, BCL Solicitors LLP
The pace of change within the criminal justice system has continued over the last year with a range of notable legal and procedural developments. Among the most significant, are changes to police bail and confirmation that pre-recorded cross examination of vulnerable witnesses will be rolled out across the country.
The drive for efficiency within the criminal justice system has continued. A number of court centres have been earmarked for closure, alongside proposals that the remaining courts will sit well into the evening. The sometimes turbulent relationship between the criminal justice system and technology has continued to develop; however, most have been pleasantly surprised by the advantages of paperless working and the digital case system.
News and debate
The year has seen a number of high profile investigations and prosecutions. The decision to charge six individuals in connection with the Hillsborough disaster highlights the continued public interest in pursuing prosecutions regarding historic allegations. Similarly, the number of investigations and prosecutions in relation to historic sexual offences has continued to rise.
The police recorded an annual rise of 10% in the number of offences committed during the year ending March 2017. It is believed that the increase may be attributed to improvements in recording practices, but also due to a genuine increase in some types of crime. The uptake of new offences has been varied. While reports indicate that police forces have failed to make use of the new offence of controlling or coercive behaviour, the number of prosecutions in relation to new modern slavery offences has risen sharply. Provisions came into force in January 2017, including a redefinition of ‘sexual exploitation’ in the Sexual Offences Act 2003 to include the streaming of indecent images. April 2017 saw the creation of new offences in relation to the failure to prevent the facilitation of tax evasion offences and sexual communication with a child.
Attempts to pull the criminal justice system into the 21st century through digital working have been broadly successful. Prosecution evidence is generally being made available to the defence at an earlier stage, and police forces are starting to utilise cloud-based storage services to store and share video evidence. The increase in police body-worn cameras has led to an increase in so-called ‘victimless prosecutions’, particularly in cases involving domestic violence. The policy and public interest arguments for such prosecutions are well known; however, many have voiced concerns over the ability of the defence to test witness accounts.
The recent publication of a number of reports addressing failings in the disclosure process have highlighted concerns that evidence which may assist defendants is not being disclosed. The Mouncher investigation report into the failed trials of 15 defendants charged in connection with the “Cardiff Three” miscarriage of justice calls for a cultural shift in approach and attitude to disclosure. Similarly, a joint report by HM Inspectorate of Constabulary and HM Crown Prosecution Service Inspectorate paints a damning picture of the level of compliance by the police and Crown Prosecution Service with the rules regulating disclosure. Only time will tell whether the recommendations made will be adopted and address the problems identified. Even if they do, there are new challenges on the horizon, including advances in technology such as the proliferation of smart phones, resulting in high volumes of electronic evidence.
Legal aid is under review again as the Government set out proposals for the reform of payments through the Litigators’ Graduated Fee Scheme and changing rates for court appointee work. Elsewhere, privately funded defendants are finding it increasingly difficult to recover anything more than a fraction of the fees paid following acquittal.
Key legal developments
Earlier this year, the Policing and Crime Act 2017 came into force. The Act has brought various reforms to policing, but the most relevant for criminal practitioners are the changes to police bail. The previous provisions under the Police and Criminal Evidence Act 1984 meant those suspected of criminal offences regularly remained on bail for lengthy periods. It was not uncommon for individuals to remain on bail for months, even years, awaiting a charging decision with effectively no means of ensuring that decisions were being made expeditiously. The new provisions limit the time during which an individual may be subject to police bail; a standard 28 day period with the ability for a senior officer to extend the period for 3 months, if certain criteria are met. Any request for further extensions must be made to the Magistrates’ Court.
The previous provisions attracted significant criticism. Lengthy periods of police bail led not only to indefinite uncertainly for individuals, but when coupled with bail conditions often meant a significant inconvenience to the daily lives of those who were only suspected of committing a criminal offence. The purpose behind the new provisions seems clear; a checks and balance system imposed on the police meaning that there is no longer free rein for individuals to remain on bail for significant periods.
It remains to be seen whether the new provisions will bring about swifter conclusions to police investigations. An emerging pattern is seeing individuals being released ‘under investigation’ following an arrest and interview. Whilst not on bail, arguably this position leads to more uncertainty with no end date in sight. Furthermore, an individual released from police bail is inevitably going to relieve police forces of the administrative burden of the new regime.
Late 2017 sees the beginning of the phased roll-out of pre-recorded cross examination of complainants in cases concerning sexual offences. The former Justice Secretary Elizabeth Truss has brought forward the plans, stating: “This will not reduce the right to a fair trial, but will make sure victims of these crimes are protected and able to provide their best possible evidence.”
Practically speaking, the provisions involve the cross examination of certain witnesses taking place outside of the court room, prior to the beginning of trial. This would impose not only time limits on the amount of time in which complainants would be questioned, but the evidence may also be subject to edits prior to being shown to the jury. This is currently seen in cases involving very young complainants.
As the scheme continues to be rolled out, so too will the debate regarding the extent to which the pre-recording of evidence affects the fair trial of defendants. The balance between the rights of defendants and the rights of complainants, particularly in cases involving sexual allegations, is already subject to much scrutiny and the new provisions will undoubtedly lead to further debate as to whether, and if so to what extent, the new provisions tip the scales.
New sentencing guidelines have been introduced in relation to the sentencing of children and young people and the imposition of community and custodial sentences. More controversially, new guidelines in relation to the reduction in sentence for a guilty plea have been met with almost universal criticism by defence practitioners. A common concern expressed is that the new guidelines, which require defendants to plead guilty at an earlier stage in proceedings to receive the maximum reduction in sentence, represent an erosion of the principle that the burden is on the prosecution to prove a defendant’s guilt. It remains to be seen whether judges will adopt the position that a defendant ‘knows if he did it’, or whether a measure of flexibility will be read into the guidelines. One further unintended consequence could be an increase in the number of matters proceeding to trial.