Winter Update – Criminal Law
As we enter 2016, criminal practitioners will reflect on an eventful and unpredictable past year. As well as the usual developments with legislation and case law, the past year has seen an escalation of the Government’s attack on criminal legal aid – matched by a strong and defiant response from the profession. 2015 saw periods of unprecedented unity amongst the profession and other periods of disagreement and uncertainty. Irrespective of the different views about what has happened, there has certainly been a great deal of hard work and sacrifice by many individuals and law firms along the way.
The Government is now facing widespread litigation about the process adopted by the Legal Aid Agency for considering bids for the new duty contracts. The grave concern about the flawed nature of the process has resulted in legal challenges in 69 of the 85 procurement areas. A group has also been set up called the “Fair Crime Contracts Alliance”. The group is in the process of issuing Judicial Review proceedings which will run alongside the challenge to the procurement process. The delay will result in an extension of the existing contracts which will now expire on 31st March 2016. The effect of the delay is that the crippling uncertainty for all criminal practitioners will continue well into the New Year.
Better Case Management and the Crown Court Digital Case System
Meanwhile, over the past few weeks in the courts, the fledgling Better Case Management process for handling cases is underway – with the first Plea and Trial Preparation Hearings appearing in Liverpool Crown Court at the end of November. Initial feedback mainly relates to the hearings in the magistrates’ courts and it is clear that there is significant pressure on solicitors to fully prepare cases for the first hearing at the lower court. This is not always easy when considering issues with clients, funding and service of papers. Thereafter, if the system is to work as desired, cases need to be put quickly in order for the hearing at the Crown Court – including discussions between the parties about any possibly resolution.
Feedback from the PTPHs at the Crown Court will come through in due course. For straightforward cases, the system should be reasonably successful from the outset. For more complicated cases, the courts may have to be a little more patient than Lord Justice Gross would like.
The BCM system will be supported by the Crown Court Digital Case System (DCS). The DCS is essentially an electronic copy of the court file and is the latest step towards paperless working in the Crown Court. When operational, DCS should allow all parties to access papers and present cases in court digitally using computers, tablets and smartphones.
It is worth noting that documents will be “served” when a notification is sent to say that they have been uploaded to DCS, as reflected in CrimPR 4.6.
The “relevant” case documents will be presented through DCS to all parties and most documents will be shared with each participant. There is the opportunity to make private notes and judges can make secure endorsements which will only be seen by other judges on the official “memorandum”.
I am by no means an expert, but I would like to think that I am fairly adept at using technology. Despite this, DCS makes me a little apprehensive so I can only imagine how it makes others feel. The reality, however, is that digital working is probably not far off for all of us – so the sooner we embrace it the better.
Continuing in this vein, the Criminal Procedure Rule Committee has issued a proposal for the use of live links and telephone conferences for the conduct of hearings. The Committee is inviting comments on the proposals by 26th February 2016. The proposed changes would impose duties to use “live links” at every hearing where one can be used and “telephone conference facilities” for the conduct of PTPHs and additional pre-trial “discussions” when no hearing is required.
Further changes to the rules would impose an obligation for all applications, representations or reports to be delivered to the courts by electronic means. If implemented, the changes will be supported by further amendments to the Criminal Procedure Rules.
In terms of recent case law, there have been a couple of cases that might be of interest. In early November the Court of Appeal released judgment in R v FNC  EWCA Crim 1732. This provided the CA with another opportunity to review the authorities where the case against the defendant relies solely on DNA evidence.
In the case, the complainant had been the victim of a sexual assault on the London underground in 2003. She gave her trousers to the police and, although DNA was recovered, no match on the database could be found at the time. In March 2014, the defendant was arrested on an unrelated matter and when his DNA was taken it provided a match to the DNA recovered from the complainant’s trousers.
The defendant provided a prepared statement in interview in which he denied any allegation of sexual assault and thereafter exercised his right to silence.
At trial, the judge made a terminating ruling holding that as the prosecution case was based solely on DNA evidence, there was no case to answer. Putting to one side the CA’s criticism of the procedure that was followed by the trial judge in issuing the terminating ruling, the CA’s clear view (see paragraph 27 onwards) was that there was a case to answer for the defendant. The CA actually went further (para 30) to suggest that the existing authorities (Lashley, Grant, Ogden) could be open to question in the light of the advancement of the analysis and techniques of analysis of DNA. I wouldn’t be surprised if the Supreme Court revisits this issue sometime in 2016.
For those of you who have dealt with cases involving causing serious injury by dangerous driving cases, and have been frustrated at the absence of a sentencing guideline, you may find the recent case of R v Smart  EWCA Crim 1756 of interest. While not providing any specific guidelines, the CA referred to the five previous sentencing authorities from 2015, and took the opportunity to provide some guidance for future cases. They are invariably difficult cases to sentence and involve a sensitive balancing exercise. Smart may provide advocates and judges with some assistance until the Sentencing Council consider it appropriate to draft a more formal document.
Smart also provides a reminder to advocates that where there are no sentencing guidelines available, it will assist the judge if the existing case authorities are reviewed, analysed and summarised accordingly for the court. This was not done in the Crown Court in Smart, and the CA was quick to criticise the omission to refer to the existing authorities.
Whilst on the subject of Sentencing Council, definitive guidelines have now been published for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences. They will apply to all sentences passed on, or after, 1st February 2016, regardless of the date of offence.
One useful addition to the Magistrates’ Court Guidelines which I hope will come in due course would be a guideline for the “new” driving whilst under influence of a controlled drug. Some courts are being invited to draw comparisons with the excess alcohol guidelines but I would suggest caution with this approach. In a recent case in court, the defendant was 13 (thirteen) times over the limit for a controlled drug but was showing little signs of intoxication and the police did not witness any signs of poor driving. The prosecution invited the court to consider the excess alcohol guidelines for comparison – to which the judge quickly pointed out that if the defendant had been 13 times over the drink driving limit he would have been dead and not driving at all!
And, on that note, I wish you all the best for a healthy, happy and prosperous New Year. Hopefully it will be a more stable year for criminal practitioners, but I won’t be hold my breath…
Taken from an article that first appeared in the December 2015 issue of Liverpool Law Magazine.
Nick Cockrell is the Head of Crime at Linskills.
Linskills are a law firm that help people accused of criminal offences throughout England and Wales. For a free consultation call 0800 0963 238 or send us a message.