Whilst i have the greatest respect for Stephen Parkinson it seems to me he is missing a number of crucial points
1. the time taken in the investigative process has become nothing short of abhorrent for a defendant and complainant to wait 3 to 4 years for a decision to be made as to whether a prosecution follows is not fair to anyone, particularly in cases where sexual assault is alleged, there are 2 reasons for this
a. when i chaired the Law Society Criminal Law Committee we lobbied the then Home Secretary to take steps to reduce the time accused persons were on bail, she agreed with this only for the Police to insist at the last minute that they needed an escape clause for exceptional cases so " Released under investigation " was devised. We now find that the exceptional cases has become the Norm as a result i am afraid to say of enormous delays in bringing cases to court because of the often dilatory way they are investigated.
b. The CPS around the same time moved to requiring a full file assessment as opposed to a threshold test this meant the police had to submit everything including unused material before a charging decision was reached thereby giving the police the excuse to delay.
The delays in the investigative process are scandalous, the number of cases released under investigation or on bail is frankly eye watering if you add that onto the delays in the Crown Court and Magistrates court it is a demonstration that the system is broken.
2. At the Law Society in my time we were constantly suggesting to the powers that be that the front loading costs of early engagement would save many millions of pounds and cut delays. I am afraid to say no politician has woken up and smelt the coffee. Delays in the Crown Court mean some court centres listing trials into 2027 and 2028 how is that fair to defendants and complainants. The MoJ answer to this is reduce Judges sitting days in my court centre in Bristol with 10 courts we are reduced to siting 6 courts. The criminal Justice system has been long mismanaged by various parties and administrations.
3. If we are to have early pleas then the CPS need to serve papers far earlier in a form that enables defence Lawyers to take proper instructions and be sensibly remunerated for it.
It's disappointing that Parkinson resorts to the old trope that Defence lawyesr string things out (and that he particularly mentions cracked trial fees).
There is no longer an incentive for Defence barristers to string out cases. The Criminal Legal Aid Remuneration Regulations 2013 did provide for a sliding scale of increasing fees closer to trial but this was removed in 2020 and the cracked trial fee equalised with the trial fee - and is payable on change of plea whenever it takes place. There is an incentive under the Litigator's Fee Scheme, but I note that the solicitor Mr. Parkinson chooses not to mention this.
The real difficulties with pleas came in 2017 with twofold changes:
First, the Sentencing Council declared that the previous 30% discount for Crown Court pleas would no longer be allowable. Until then Crown Court judges had regularly dangled the full credit as an incentive to plead;
Second, with the inception of the the ill-named "Better Case Management" protocol, plea hearings in the Crown Court ("Plea and Trial Preparation hearings, or PTPHs") took place earlier than the previous Plea and Directions Hearings ("PDHs") and, crucically, before the full Prosecution case was served. Lawyers were expected to advise on pleas, and defendants to decide on pleas, based on little more than a police summary - which have long been known as a statement of wishful thinking, rather than of the evidence to come. In such circumstances, and particularly in any case of complexity the inevitable (and proper) advice was to wait and see what the Prosecution could prove. Those who think Goodyear indications are the answer (and they're probably not, as the Court of Appeal has made it clear they hate them, so judges are effectively warned off) should know that no sensible judge is going to give a Goodyear before the full case is served.
Rather than Parkinson blaming barristers (who remain his cohort for RASSO prosecutions and will for the foreseeable) or the Government musing about old ideas like intermediate Courts (which would be massively expensive and need a comprehensive rewriting of innumerable pieces of legislation), the Sentencing Council could tomorrow declare that 30% was back on the table at PTPH and the senior judiciary could tomorrow indicate that case management should take place after what's now called Stage 1 (service of the Prosecution case) and we'd see meaningful changes.
Also, it is so significant to recognise that hugely at play in defence practice especially is the human factor. Family and relationship dynamics in particular with defendants can mean that timely advice professionally and ethically may so often fail to chime with emotional and familial gravitational force. The same of course applies with prosecution complainants and witnesses. To disregard all of those fundamental factors is to deny ourselves- the entire system- any serious prospect of enlightened reform. Those agency personnel of whichever service programmed just to churn out the same non sequiturs do the community a disservice. This is in no respect aimed at Stephen Parkinson who I believe to be a genuine public servant, but I fear I sense a lack of just that necessary tension which comes from encounters at regular meetings amongst different “hands on” agency practitioners prepared to be (professionally) confronted and to revisit what may well be unrealistic or counter productive assumptions about each others’ roles and ethical codes. The quest for simple “answers” is less than adult; there are better or worse ways to reach decisions and to act upon them rather than there ever being the remotest prospect of some “silver bullet” ensuing by one agency blaming another or doubting the other’s good faith. Equally, the naive desire to remove “rubbing points” in encounters with other agencies is wrongheaded. A system without tensions between or amongst agencies is NO system at all.
“If defendants had a better idea of the sentence they would receive, they might plead guilty earlier and take advantage of the discounts on offer” - isn’t that already the case with a Goodyear indication?
The starting and finishing premise for so many of these failings around for “answers” seems too often to be to impute bad faith or a lack of public spiritedness to the criminal defence sector. My beleaguered former colleagues can do no more and no better than to lurch from one crisis after another, operating on paper thin profit margins. And yet it is the defence to get all or most of the flak. I KNOW: I did THE job for forty seven years, front of house in Magistrates’ and Crown Courts, back of house with police station advice followed by a day’s advocacy on precious little sleep AND helping to run an office. Also I with a Committee as its Chair delved into all this and faced down similar underinformed or “own agenda” based attacks. Legal aid fee structures are the mishmash one has to expect from fighting rearguard actions against governments of all hues just to keep our waterlogged ships afloat. Without adequate -or ANY- disclosure how can defence practitioners tell it how it is to their clients? A way of streamlining disposals in heavy cases? Change the prison rules so that privileges for prisoners remain post conviction after pleas of “guilty” and before sentence. When in prison the merest crumbs of remand status privileges count for so much. Let us abandon the assumption that you have constantly to penalise rather than reward or deliver basic comforts which ought in any civilised country to be a given.
Thank you for an extremely interesting article. Could having a PM who used to head up the CPS himself is resulting in MPs giving a higher priority to such matters?
Whilst i have the greatest respect for Stephen Parkinson it seems to me he is missing a number of crucial points
1. the time taken in the investigative process has become nothing short of abhorrent for a defendant and complainant to wait 3 to 4 years for a decision to be made as to whether a prosecution follows is not fair to anyone, particularly in cases where sexual assault is alleged, there are 2 reasons for this
a. when i chaired the Law Society Criminal Law Committee we lobbied the then Home Secretary to take steps to reduce the time accused persons were on bail, she agreed with this only for the Police to insist at the last minute that they needed an escape clause for exceptional cases so " Released under investigation " was devised. We now find that the exceptional cases has become the Norm as a result i am afraid to say of enormous delays in bringing cases to court because of the often dilatory way they are investigated.
b. The CPS around the same time moved to requiring a full file assessment as opposed to a threshold test this meant the police had to submit everything including unused material before a charging decision was reached thereby giving the police the excuse to delay.
The delays in the investigative process are scandalous, the number of cases released under investigation or on bail is frankly eye watering if you add that onto the delays in the Crown Court and Magistrates court it is a demonstration that the system is broken.
2. At the Law Society in my time we were constantly suggesting to the powers that be that the front loading costs of early engagement would save many millions of pounds and cut delays. I am afraid to say no politician has woken up and smelt the coffee. Delays in the Crown Court mean some court centres listing trials into 2027 and 2028 how is that fair to defendants and complainants. The MoJ answer to this is reduce Judges sitting days in my court centre in Bristol with 10 courts we are reduced to siting 6 courts. The criminal Justice system has been long mismanaged by various parties and administrations.
3. If we are to have early pleas then the CPS need to serve papers far earlier in a form that enables defence Lawyers to take proper instructions and be sensibly remunerated for it.
These too are very thoughtful comments: many thanks.
It's disappointing that Parkinson resorts to the old trope that Defence lawyesr string things out (and that he particularly mentions cracked trial fees).
There is no longer an incentive for Defence barristers to string out cases. The Criminal Legal Aid Remuneration Regulations 2013 did provide for a sliding scale of increasing fees closer to trial but this was removed in 2020 and the cracked trial fee equalised with the trial fee - and is payable on change of plea whenever it takes place. There is an incentive under the Litigator's Fee Scheme, but I note that the solicitor Mr. Parkinson chooses not to mention this.
The real difficulties with pleas came in 2017 with twofold changes:
First, the Sentencing Council declared that the previous 30% discount for Crown Court pleas would no longer be allowable. Until then Crown Court judges had regularly dangled the full credit as an incentive to plead;
Second, with the inception of the the ill-named "Better Case Management" protocol, plea hearings in the Crown Court ("Plea and Trial Preparation hearings, or PTPHs") took place earlier than the previous Plea and Directions Hearings ("PDHs") and, crucically, before the full Prosecution case was served. Lawyers were expected to advise on pleas, and defendants to decide on pleas, based on little more than a police summary - which have long been known as a statement of wishful thinking, rather than of the evidence to come. In such circumstances, and particularly in any case of complexity the inevitable (and proper) advice was to wait and see what the Prosecution could prove. Those who think Goodyear indications are the answer (and they're probably not, as the Court of Appeal has made it clear they hate them, so judges are effectively warned off) should know that no sensible judge is going to give a Goodyear before the full case is served.
Rather than Parkinson blaming barristers (who remain his cohort for RASSO prosecutions and will for the foreseeable) or the Government musing about old ideas like intermediate Courts (which would be massively expensive and need a comprehensive rewriting of innumerable pieces of legislation), the Sentencing Council could tomorrow declare that 30% was back on the table at PTPH and the senior judiciary could tomorrow indicate that case management should take place after what's now called Stage 1 (service of the Prosecution case) and we'd see meaningful changes.
Of course, some sitting days would help too.
Thanks for these very thoughtful comments.
Also, it is so significant to recognise that hugely at play in defence practice especially is the human factor. Family and relationship dynamics in particular with defendants can mean that timely advice professionally and ethically may so often fail to chime with emotional and familial gravitational force. The same of course applies with prosecution complainants and witnesses. To disregard all of those fundamental factors is to deny ourselves- the entire system- any serious prospect of enlightened reform. Those agency personnel of whichever service programmed just to churn out the same non sequiturs do the community a disservice. This is in no respect aimed at Stephen Parkinson who I believe to be a genuine public servant, but I fear I sense a lack of just that necessary tension which comes from encounters at regular meetings amongst different “hands on” agency practitioners prepared to be (professionally) confronted and to revisit what may well be unrealistic or counter productive assumptions about each others’ roles and ethical codes. The quest for simple “answers” is less than adult; there are better or worse ways to reach decisions and to act upon them rather than there ever being the remotest prospect of some “silver bullet” ensuing by one agency blaming another or doubting the other’s good faith. Equally, the naive desire to remove “rubbing points” in encounters with other agencies is wrongheaded. A system without tensions between or amongst agencies is NO system at all.
“If defendants had a better idea of the sentence they would receive, they might plead guilty earlier and take advantage of the discounts on offer” - isn’t that already the case with a Goodyear indication?
I believe that comes from the judge. This would come from the prosecution.
Sorry: “flailings around”
The starting and finishing premise for so many of these failings around for “answers” seems too often to be to impute bad faith or a lack of public spiritedness to the criminal defence sector. My beleaguered former colleagues can do no more and no better than to lurch from one crisis after another, operating on paper thin profit margins. And yet it is the defence to get all or most of the flak. I KNOW: I did THE job for forty seven years, front of house in Magistrates’ and Crown Courts, back of house with police station advice followed by a day’s advocacy on precious little sleep AND helping to run an office. Also I with a Committee as its Chair delved into all this and faced down similar underinformed or “own agenda” based attacks. Legal aid fee structures are the mishmash one has to expect from fighting rearguard actions against governments of all hues just to keep our waterlogged ships afloat. Without adequate -or ANY- disclosure how can defence practitioners tell it how it is to their clients? A way of streamlining disposals in heavy cases? Change the prison rules so that privileges for prisoners remain post conviction after pleas of “guilty” and before sentence. When in prison the merest crumbs of remand status privileges count for so much. Let us abandon the assumption that you have constantly to penalise rather than reward or deliver basic comforts which ought in any civilised country to be a given.
The committee looked full of inexperienced politicians who did bat an eyelid at the appalling backlog figures. Up 80% since the pandemic. !
Listing cases now for 2027!
Only 40% of trials proceed on the day.
This is a culture of working from home and public sector low productivity.
With overcrowded prisons and poor legal aid it truly a service in crisis.
You are right to say that members of the committee are new MPs — apart from the chair.
Thank you for an extremely interesting article. Could having a PM who used to head up the CPS himself is resulting in MPs giving a higher priority to such matters?
It would be good to think so. I shall have more on this tomorrow.