As for the CJA, it is rumoured that the government will announce the commencement of new disclosure rules contained in the Act. Parliament has just ordered the commencement of the parts of the act allowing a prosecutor to apply for an acquittal to be quashed in serious cases, so creating a statutory exception to the double jeopardy rule (commencement order SI 2005 No. 679 comes into force 4th April 2005).

The CrimPR mirror the changes already brought about by Civil Procedure Rules (‘CPR’) in several key respects.

First, the CrimPR bring the procedural rules under an overriding objective (which is, to deal with cases justly – to read the overriding objective click here - a slow download because the CrimPR are available online at present only as a single document). The CPR’s overriding objective was met with scepticism by many practitioners. It was introduced at a time when every organization had a mission statement. Well paid ‘managers’, no doubt in expensive consultation with their chums who had set up as expert ‘consultants’, would strain their grey cells at arduous brainstorming sessions in country house hotels, and come up with such gems as, ‘The mission of the University of XXX is to contribute to society through the pursuit of education, learning, and research at the highest international levels of excellence [replace XXX with Cambridge, South Merseyside, or Mickey Mouse as required]’. However, time has shown that the overriding objective in CPR has fared much better than those mission statements. The mission statements have been wisely buried, or lost altogether, from corporate websites and brochures, but the overriding objective has, like the change in terminology, been a signpost to a real change in culture, notwithstanding the justified view that it merely articulates what courts had generally aimed to do already. The same is likely to be true of the CrimPR’s overriding objective.

Second, the CrimPR form a consolidated procedural code which covers both Magistrates Courts and Crown Court. Similarly, the CPR replaces the separate rules which formerly prevailed in County Courts and the High Court. I suppose that makes the rules easier to learn – though it does not seem hugely significant. High Court practitioners still tend to use the White Book, and County Court practitioners still tend to use the Green Book. No doubt the dominance of Stones and Archbold will persist, and it will continue to be difficult for competitors to break into the market in a significant way. The consolidation of rules for civil cases did not usher in a sudden convergence of the cultural differences between the Royal Courts of Justice and the County Courts.

On the question of cultural convergence, I digress here to mention the launch of Her Majesty’s Court Service. Because there will be central administration for all court buildings, we can expect future buildings to combine civil courts, county courts and magistrates courts. It would not be surprising if this trend were, in the long term, to act to diminish differences in culture between the Crown Court and the Magistrates’ Courts.

Third, the chief practical change which CrimPR envisages is a combination of more active case management with more early case preparation and clarification of issues. Just as CPR replaced directions hearings with case management conferences, the CrimPR replaces Plea and Directions Hearings (‘PDH’s) with Plea and Case Management Hearings (‘PCMH’s). The change in nomenclature, like the overriding objective, is a signpost to a planned change in culture. The idea is that parties will prepare cases in more detail at an earlier stage. This has worked in the civil court system. However, it is not clear how it will be enforced under CrimPR. Rule 3.5(2)(i) states that ‘the court may…specify the consequences of failing to comply with a direction.’ But what would they be? Under CPR, of course, ignoring orders can lead to costs penalties, and ultimately striking out of some or all of a party’s case. Parties who fail to comply with orders as to evidence may also be precluded from introducing evidence late, and may have evidential inferences drawn against them (for example about the contents of documents which they have failed to disclose). Dismissing a prosecution case for procedural lapses seems draconian, but refusing to hear the defence of a defendant who fails to comply with procedural orders is plainly incompatible with the presumption of innocence. Nevertheless, it is likely that practitioners will co-operate with the shift towards more early preparation of cases, and that the culture will change as proposed.

Co-operation of practitioners is, then, likely to be essential. In the civil courts it has not been a problem. Practitioners can do what the rules require and charge their clients for such work as may be required. Co-operation might be more difficult to secure in the criminal courts under a government that is more interested on money than justice. The worthy developments in the CrimPR are produced by the Department of Constitutional Affairs (‘CDA’), but the government has hived off into a quango (the LSC) the trickier task of worrying about how to pay for the system with insufficient government funds. That body has come up with the terrifying proposal of entrusting the interests of defendants who cannot pay privately for representation to the lowest bidders. We all know perfectly well that if we get half a dozen quotes for building work at home, taking the lowest quote usually leads to disaster. The idea of a bidding war for criminal justice appeals to nobody apart from a handful of tabloid editors and politicians who equate support for law an order with a presumption that defendants are guilty. The CLS are consulting on their proposal of starting a price war in criminal justice until 29 April 2005. Given the way public bodies work, one can anticipate unanimous condemnation from consultees, followed by statement from the CLS that the implementation of this ‘bright idea’ followed ‘full consultation.’ The Criminal Law Solicitors’ Association are holding a meeting on 15 April to discuss its response.

The Bar Council has also expressed very serious concern that the CLS has no immediate plans to pay counsel for the substantial additional work which will be required under CrimPR. The more detailed preparation for trial which will be required before, and at, the new PCMHs will obviously involve work for counsel, who are at present still tied to the existing fixed-fee system for such hearings. From the point of view of the government, there is a certain attraction in withdrawing funding from criminal practitioners: the harder it gets make a living as a criminal lawyer, the more effectively the government can draw the teeth of resistance from the professions against its wish to shift criminal defence away from independent practitioners and into criminal defence offices modelled on the American system.

Dr John Birchall - Professional English, Legal English, and Common Law Training