Lasting Powers of Attorney: recent key developments
Last month His Honour Geoffrey Rivlin QC, former resident judge at Southwark Crown Court and chair of the Criminal Justice and Reform group established by the Bar Council, published a report on “Criminal Justice, Advocacy and the Bar” (The Rivlin Report). The terms of reference of this review were to consider and formulate proposals for the more efficient and effective conduct of the work of the Crown Court, with a particular focus on the representation of individuals by barristers and other advocates. The report puts forward recommendations to address current failings and weaknesses within the Criminal Justice System (CJS) and the tension that exists between the interests of justice and the current state of the public finances.
This report follows two earlier reports - the ‘Review of Efficiency in Criminal Proceedings’ by Sir Brian Leveson and the ‘Review of Independent Advocacy in England and Wales’ by Sir Bill Jeffrey. All three reports indicate that the shortcomings of the CJS continue to be a grave cause for concern. The Rivlin Report claims that its recommendations might ‘if carried out, secure the confidence of the public that the system is operating to the highest standard’.
The Rivlin Report acknowledges that the CJS is ‘chronically short of money’, which has consequently deprived courts of local administrative leadership where staff have been severely cut. This lack of resources has also had radical effects upon many institutions that play a central role in the CJS. Cuts to the police and the CPS may prevent some prosecutions from taking place, and those who are prosecuted may find themselves unable to access legal aid because of the contributions they are required to make, if they qualify at all. These reflect decisions made by government about public spending, which fall outside the scope of the report.
The Rivlin Report, whilst acknowledging this public spending landscape, focuses on some of the important processes in the operation of the CJS, which are essential to the delivery of justice and upholding the rule of law. The key focuses of the Rivlin Report are on case management, advocacy and professional integrity. The report’s recommendations are made in the context of a withdrawal by the state from doing as much as it has done in the past.
The report’s recommendations are prefaced with a focus on the need for “A strong and independent criminal Bar”, which it describes as being “critical to ensure the proper functioning of criminal justice and upholding the Rule of Law”.
In addition to numerous recommendations based around the importance of maintaining a high quality and fairly remunerated system of independent advocates, the report makes many welcome practical recommendations, which include:
The early identification of an individual with responsibility for the case at each stage from the police, the Crown Prosecution Service (CPS) and the prosecution and defence advocates is essential to an efficient and effective criminal justice system. The report places great emphasis upon the importance of the Plea and Case Management Hearing (PCMH) and all parties being ready for it in good time having identified the real issues from the prosecution case and the defendant’s instructions.
The person given the highly significant responsibility for making charging decisions in criminal cases should always be suitably trained and fully qualified in the law.
To ensure maximum effectiveness prior to the PCMH the CPS must serve the case papers including all CCTV, Achieving Best Evidence (ABE) interviews and DVDs in all matters, whether a guilty plea is envisaged or not, to ensure preparation can be undertaken and proper advice given. The report also recommends that the attendance of the Officer in the Case (OIC) and/or disclosure officer at the PCMH should be compulsory. Instructed advocates must be able to assist the Judge with issues such as the trial date, a timetable for preparation, the defence case statement, admissions, bad character, hearsay and expert evidence and determining whether intermediaries or interpreters will be required for the trial.
Better disclosure training is required both at police and CPS level. Designated Disclosure Officers should be required to sign an undertaking that they have taken responsibility for disclosure and complied with the process. The Rivlin Report also emphasises the need for properly applied and enforced disclosure protocols, which the report suggests would lead to greater opportunities to give Defendants sound advice and consequently a greater number of early guilty pleas.
It is inevitable that a report commissioned by the Bar would focus in particular on the issues that affect barristers – indeed the report states as much and acknowledges the other essential parts to the CJS, including the important role that solicitors play. Nonetheless it can only be helpful to have set out once again the many ways in which improvements can be made to the system. Too often it is convenient for governments to allow the suggestion that the fault lies with the defence to resonate with the public. At the heart of what the Rivlin report proposes is early identification of the issues and early preparation both by the prosecution and the defence, combined with a system that supports through training and remuneration the proliferation of high quality advocates. Few who work in the CJS would disagree with this. However, the reality is that for this to happen the public spending landscape needs to change and further resources need to be invested in the CJS.
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