The evolution of the Criminal Procedure Rules

James Hutchon considers some recent points on criminal procedure and practice, in particular in relation to case management.

The Criminal Procedure Rules (CPR) has evolved into being an essential litigation framework and with recent amendments to the rules they now provide a clear pathway for practitioners to follow. The emphasis is on bringing cases more quickly through the system and together with costs sanctions for non-compliance with the rules, means that practitioners cannot afford to ignore the fundamental changes that are taking place in the criminal courts.

Since the CPR came into force in 2005, they have effected a sea change in the way in which cases should be conducted. The rules make clear that the overriding objective is that criminal cases be dealt with justly; that includes acquitting the innocent and convicting the guilty, dealing with the prosecution and defence fairly, dealing with the case efficiently and expeditiously, and also, of great importance, dealing with the case in a way that takes into account the gravity and complexity of the offence and issues.

The Rules impose a duty on participants in a criminal case to prepare and conduct the case in accordance with the overriding objective, to comply with the rules and, importantly, to inform the court and all parties of any significant failure, whether or not the participant is responsible for that failure and to take any procedural step required by the rules. The court is also under a duty to further that overriding objective by actively managing the case.

The current Rules came into force on 3 October 2011 with further amendments in April 2012. The most radical part is the introduction of the overriding objective, adopted principally from the success of the Civil Procedure Rules, and the concept of case management. The rules give formal authority to what has been an increasing trend in criminal law to allow the courts to case manage and tightly control proceedings.

The explicit powers given to the court to actively manage the preparation of criminal cases (CPR 3) are designed to prevent unfair and avoidable delays and to promote certainty about what is happening for the benefit of everyone involved. There seems to be a general hardening of attitudes towards prosecution mistakes and recent case law shows a determination in the judiciary to enforce the CPR by invoking sanctions for non-compliance with the Rules (CPR 5) with the first use of a wasted costs order against a firm of solicitors arising from a failure to serve an application in opposition to a hearsay notice. R v SVS Solicitors [2012] EWCA Crim 319.

Nevertheless, it should be remembered that the rules are applicable to all parties including the court. Although it might encourage greater efficiency to refuse an adjournment even if the case will collapse as a result, it also jeopardises the public interest in reaching accurate verdicts and properly punishing the guilty – values to which the overriding objective commits all participants in criminal proceedings.

The updated rules now make clear that the court may require issues in the case to be identified in writing. Prosecutors will be aware that case progression forms have been in use for some time now but it has been reported that some courts were unsure of their powers to require the identification, in writing, of what was in issue. Advocates are advised, however, to take care when completing these forms. In R (on the application of Firth) v Epping Magistrates’ Court [2011] EWHC 388 (Admin) the Divisional Court held that a lawyer’s note on the case management form that the defendant had acted in self-defence was admissible as hearsay evidence by the prosecution when the defence attempted to state that there was insufficient evidence to identify the defendant as having been present at the incident.

However, prosecutors should note that an application to admit assertions recorded on the form should only be made when necessary and appropriate, for example, where the defence are not acting in the spirit of the Criminal Procedure Rules in seeking to ambush the prosecution or raising late and technical defences that were not previously raised as issues.

Whilst the overriding objective is paramount it is clear that failure to comply with the Rules can, in some circumstances, have a significant affect on the determination of proceedings; for example by the court invoking its power to refuse to allow the failing party to introduce certain evidence or even to draw adverse inferences from the late introduction of an issue or evidence. Although in R (on the application of Kelly) v Warley Magistrates' Court (The Law Society intervening) the Administrative Court emphasised the need for sanctions to be "proportionate" and "no more than might reasonably be required for the proper working of such a regulation".

In view of this, prosecuting lawyers really must give serious consideration to the consequences of a failure to comply with the CPR because such failure could result in the court exercising its power to make a costs order, for instance, if an adjournment is necessary for the prosecution to run criminal record checks on a witness.

Case management in the magistrates' court also provides for case progression forms to be used in appropriate cases. As a general rule the form should be used in any case in which a not guilty plea is entered. However, its use in each case is in the discretion of the court.

Where the court is in possession of all the relevant information, and is satisfied that the issues in the case, and the arrangements required for trial in consequence, are so straightforward as to require few directions: then the court may decide to dispense with the form.

The Criminal Procedure Rules provide a clear framework for conduct and case management and have useful sections on starting the process of a prosecution, service of documents, disclosure and essential rules of evidence. They go on to look at the trial process, sentencing, appeals and costs. Practitioners are advised to read the Rules (as amended) as a whole together with Practice Directions and guidance that is produced from time to time by, among others, the Crown Prosecution Service and the Law Society.  

Perhaps as an indication of the apparent success of the Rules over the last seven years, they have remained under constant review and have variously been amended. On 1 October 2012 the latest development of the Rules will be effective with the coming in to force of the Criminal Procedure Rules 2012.

These Rules will replace the CPR 2011 and the CPR (Amendment) Rules 2011 and will become the definitive and primary source for procedure in criminal cases.

The new Rules will replace completely the existing rules about bail applications and appeals and also completely replace existing rules regarding the statement of a case by a magistrates’ court or the Crown Court for the purposes of an appeal to the High Court.

Additionally, the 2012 Rules will make changes in respect of the service of documents in criminal cases (Part 4); applications for investigation orders (Part 6), sending a defendant for trial in the Crown Court (Part 9); reporting restrictions (Part 16); written witness statements (Part 27); giving advance notice of hearsay evidence (Part 34); introducing oral and written evidence at trial in magistrates’ courts (Part 37); giving notice of the requirements of suspended sentence orders, and about giving notice to those affected by a community order requirement (Part 42).

In all other respects, this restatement of the Criminal Procedure Rules repeats the existing rules.

James Hutchon is Principal Legal Assistant at Essex Legal Services.