CRIME: An Introduction
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QEB Hollis Whiteman - Criminal Justice In Depth Overview
There is no doubt that the pandemic pushed an already strained and underfunded criminal justice system to the brink over the course of the last year. In March 2020, as the country ground to halt, the Lord Chief Justice announced the unprecedented decision to suspend all jury trials in England and Wales. There then followed eight weeks without a single jury trial across the 77 Crown Court centres of England and Wales. Most Crown Court centres are still running at a substantially reduced capacity compared to pre-pandemic levels. As of June 2021, the backlog of Crown Court cases was an estimated 60,692 - an increase of 40% from the same period in 2020, and the highest level since reporting began in 2014.
The result is that victims, defendants and witnesses are now routinely faced with very substantial delays before trial. Recently the Prime Minister has undertaken, in respect of rapes and other serious sexual offences, to bring about a substantial reduction in the length of time between an allegation being made and a trial occurring. This builds on previous acceptance by the Home Secretary and others that conviction rates in such cases must improve. How these changes can realistically be delivered without truly game-changing levels of investment in the police, Crown Prosecution Service, judiciary and in the court estate itself remains to be seen. The increase in the amount of pre-recorded examination of vulnerable complainants, although done for laudable aims, also places significant demands on practitioners, and requires resourcing to match.
During the last year, the valiant efforts of court staff at existing Crown Court centres across England and Wales have allowed trials to resume following the hiatus: however, participants now often find themselves impeded by the sound-limiting thick plexiglass screens; the awkward spread of the jury around the court room; technical difficulties with live link evidence; strict requirements to quarantine documents before distributing and disruptive delays when participants are required to self-isolate.
In addition, newly commissioned ‘Nightingale’ courts – often corporate buildings previously used as conferencing centres adapted to accommodate short non-custody jury trials – have been essential in taking some of the strain from court centres who often found themselves having to turn up to half their existing courtrooms into jury deliberation rooms, due to the tiny, cramped, nature of the spaces normally used for such purposes. The reliance on the Nightingale Courts shows that there needs to be a substantial reverse in the sharp decline in the number of criminal courtrooms in this country (and, inevitably, provision of judges and staffing to match).
A welcome change for practitioners was the long overdue introduction of greater use of courts' secure remote video platform hearings. Not only do such hearings save the time and expense of travelling, there is a far greater chance that instructed advocates will be available to cover their cases, increasing efficiency and effectiveness. The message from Her Majesty’s Courts and Tribunal Service is that they expect such hearings to continue to be an integral part of a modern justice system, however, the national position is inconsistent, with varying practices and approaches by judges in court centres.
Historic sexual offences have dominated the news since the rise of the ‘Me Too’ movement in 2017, and public concern shows no signs of lessening, as demonstrated by the outcry over the high-profile murders of Sarah Everard and Sabina Nessa. One of the more significant development is in the form of the ‘Everyone’s Invited’ website, set up in June 2020. The testimonies on the site, many of which contain allegations of serious sexual offences, are now in excess of 50,000 and have instigated a Metropolitan Police investigation into whether rape culture is inherent within the education system. It is highly likely that a large number of prosecutions will arise as the investigation moves on.
Scrutiny on the effectiveness of prosecution authority disclosure processes has periodically raised its head over the past year. Most significantly, in April 2021, the Court of Appeal in Hamilton and others v Post Office Limited quashed the convictions of 39 people, having found that there had been a wholesale failure in investigation and disclosure by the Post Office in its private prosecutions of those defendants. Following the judgment, the Post Office announced that it was contacting at least 540 former post masters with relevant convictions in order to ascertain whether there had been further miscarriages of justice, and that it is now conducting the largest ever post-conviction disclosure exercise. The case is also a warning to the ever increasing number of private prosecutors - ensuring the integrity of the investigation and prosecution is key: if flaws in the evidence are identified, then a case must not carry on regardless, and only a totally fair disclosure process will be acceptable to the courts.
The Police, Crime, Sentencing and Courts Bill is intended to overhaul existing legislation regarding police, criminal justice and sentencing, codifying disparate areas of existing law including knife crime, protests, crimes against children, and sentencing limits. Whilst the bill deals with a huge array of issues, the element that has received the most attention is the increase in police powers in respect of protests. Views differ as to whether the bill will (in the words of one commentator) “drastically re-orientate the relationship between citizen and state in favour of the latter”, or whether it is a necessary response to the protests (primarily regarding climate change) which have caused increasing levels of disruption since 2018.
This year has also seen a number of key decisions relating to the rights of defendants. In May 2021, the Court of Appeal in R v Brecani held that a positive ‘Conclusive Grounds Decision’ by the state (that a person was a victim of modern slavery) was not admissible as expert evidence in criminal proceedings to prove a defence under the Modern Slavery Act 2015. In R v Plaku, the Court restricted the maximum credit of a 33% reduction in sentence for a plea of guilty only to those cases where guilt was unambiguously stated at the very first appearance in the Magistrates’ Court.
Over the last year, the criminal Bar of England and Wales has sought to meet these challenges. Those barristers listed in this directory continue to provide the highest quality advocacy, ‘without fear or favour’, on behalf of their clients, in the very best traditions of the Bar.
Philip Evans KC, Philip Stott and Katherine Lloyd
QEB Hollis Whiteman Chambers