CHAPTER 10 PREPARING FOR TRIAL INTRODUCTION 1 A wide misconception of the general public is that all or most of the criminal justice process takes place in court. But proceedings in court require preparation – much and by many. The trouble is that the process, by its very nature – fragmented among various government departments and agencies and adversarial as between prosecution and defendant – does not encourage joint and efficient preparation. There are constitutional and administrative divides, sharpened by separate budgets, that get in the way. There are limits to what can be expected of co-operation between the parties, particularly when the issue is as to guilt as well as sentence. Guilty defendants seeking to avoid conviction have not the same urgency as the public about the need for an efficient criminal justice system. Some innocent defendants, advised by their lawyers to keep their cards close to their chests, are equally unenthusiastic. And, as is now increasingly recognised, there are other individuals involved in the process, such as victims, witnesses and jurors whose interests need attention. 2 In all of these respects the process of criminal justice is a more difficult ground for orderly preparation by the parties and management by the court than in the case of civil disputes where the issue usually concerns two parties only, where legal protections for the defendant are less rigorous and where preparation for trial does not normally require input from public bodies. Unfortunately, the already infertile ground for efficient preparation of criminal cases - vital to just and efficient court proceedings - is aggravated by a number of unnecessary defects in the system. With will and resources, something can be done about them. There is now wide acceptance that there is scope for greater intervention by the court and various agencies, and for more vigour and co-operation by the parties without prejudice to their respective interests, in the preparation of cases for hearing. 395 3 Before considering areas for improvement, I should summarise the basic aims as I see them. Underlying them all is the truism that, although efficiency of the criminal justice process is an important end in its own right, it has a greater importance in its contribution to the overriding consideration in every case – a fair hearing leading to a just outcome. 4 First, the key to a just and efficient criminal process – good case preparation – is identification at the earliest possible moment of the likely plea and, if it is to be one of not guilty, the issues. There is a culture of last-minute decisions, which must be attacked if there is to be any significant improvement. Too often cases are warehoused between hearings, so that little is done until the next hearing is imminent. There should be active preparation for trial without constant recourse to the court. This depends in large part on the prosecution charging correctly at the outset, its timely and adequate disclosure of its proposed evidence and of all material otherwise relevant to the issues as it knows or believes them to be, and on the defence’s early indication in response to such material of the issues it intends to take. The need for early and adequate identification of issues applies to proceedings in all courts, not just those to be tried by judge and jury; but, of course, the manner of securing it will depend on the proceeding and on the nature and complexity of the case. 5 In all this, regard must be had to the prosecution’s obligation to make the court sure of guilt and the defendant’s right of silence. But neither is threatened by requiring a defendant to identify with some precision the matters of fact and/or of law that he intends to put in issue. If his intention is to put the prosecution to proof of everything, or only to take issue on certain matters, he is, of course, entitled to do so when the matter reaches trial. But to delay telling the court and the prosecution what he challenges as a matter of tactics, has nothing to do with the burden and standard of proof or his right of silence. Those fundamental principles are there to protect the innocent defendant from wrongful conviction, not to enable the guilty defendant to engage in tactical manoeuvres designed to frustrate a fair hearing and just outcome on the issues he intends to take. 6 Second, the parties, not the court, are responsible for the preparation of their respective cases for trial and, as part of that, for informing each other of the issues, the scope of the evidence and points of law for resolution. Pre-trial hearings can be of great help if needed and held at the right time in the preparation for trial, but they should be reserved only for such matters as the parties cannot resolve informally between themselves. At present pre-trial hearings in their various forms,1 in all but the most complex cases, are mostly unnecessary and misused. They are treated primarily as a means of bringing everybody together in court, to enable advocates to meet their clients (often 1 see para 204 - 220 below 396 for the first time and to take instructions), theoretically to focus on the issues of law and fact and to make decisions as to the conduct of the case. Of course, it is a good thing to do all of that, but a pre-trial hearing in court is not the place or the means for it, save as a last resort. It is misused largely because of a mix of failures by the prosecution and defence, aggravated by lack of resources on both sides. Sometimes, the charges are unrealistic because the prosecution has failed to review its case at an early stage and/or it has not served its proposed evidence or made due disclosure. This in turn has encouraged the defence to delay in its preparation or prompted an unwillingness to indicate a plea or the issues it intends to take at trial. There is also little incentive for publicly funded defence solicitors and counsel to prepare early for trial because they are not paid a discrete fee for a conference with their client or for early preparation. And, as they are paid a derisory fee for attending a plea and directions or other form of pre-trial hearing, there is also little incentive to prepare properly for it or for the trial advocate to attend. 7 Third, where there is a need for a pre-trial hearing the court and the parties should take full advantage of it to resolve all outstanding issues as to the conduct of the trial and to deal with any preliminary issues of law or fact that will assist that resolution. This calls for the court to adopt a more interventionist and authoritative role than has been traditional in identifying the issues for trial and in securing the proper preparation by both parties to deal efficiently with them. This in turn requires adequate preparation, not only by the parties and their advocates, but also by the judge with the benefit of sufficient time out of court in which to do it. 8 Fourth, there is the problem to which I have referred, of the uncooperative or feckless defendant and/or his defence advocate who considers that the burden of proof and his client’s right to silence justifies frustration of the orderly preparation of both sides’ case for trial. Experience in this country and elsewhere in the Commonwealth2 indicates that, in the main, court sanctions won’t compel the sort of forensic discipline that efficient case preparation requires, that they could cause injustice one way or the other and could often delay trial and increase expense rather than the reverse. However, the Review has indicated some general themes for encouraging better preparation and compliance with any directions that the court might be called upon to give. They include the introduction of a discipline of formal written orders (commonplace in the civil jurisdiction), a combination of incentives and change in professional culture, the latter aided by a properly structured system of payment which rewards preparation for trial, professional management systems that are subject to regular audit and, in extreme and clear cases, by professional sanctions and/or of loss legal aid accreditation. Among the incentives for the defendant himself might be the introduction of a system of 2 see para 231 below 397 advance indication of discounted sentence for a plea of guilty3 and retention of bail or custodial privileges after a plea of guilty and before sentence. 9 Fifth, critical to a better system of preparation for trial is the development and introduction of a form of information technology that is common to all criminal courts, the various criminal justice agencies serving them and defence advocates. Such technology should enable each agency, prosecutor and defence advocate to make its or his appropriate input to a single case file, draw from it what it or he needs and it is appropriate for it or him to have, and for the ready transmission and updating of papers in the case. Coupled with this, there is scope, already being developed, for greater use of video-link technology to link courts and lawyers on both sides and defendants in or out of custody. With such facilities, it should be possible to do much of what is now the subject of wasteful and inefficient pre-trial hearings, including custody remand productions, and bail applications. In that electronic way, it should also be possible to recover some of the ‘locality’ of access to justice lost in the modern trend to concentration of courts into fewer larger centres.