An examination into the report published by Lord Justice Auld.

Analysis of Auld’s and others’ recommendations: 

I will review Auld’s proposals on recommendations for the juries, a new criminal justice board and a unified criminal court.

JURIES:

There are four points to consider:

1. Juries should be more widely represented
2. Allow the trial judge and Court of Appeal to examine alleged improprieties in the jury room, in connection with the proceedings.
3. Defendant to be not allowed to ask for a trial with a jury instead of just the judge alone.
4. To require a judge, not a jury, to determine the issue of fitness to plead.

In order for a jury to be more represented Auld wants there to be three people from ethnic backgrounds to sit in each jury, if this balance is not achieved the case must be put forward to allow for the balance to be redressed or in the case of a single tier court the judge can decide if another venue will be appropriate.

The Bar Council response

“Juries need to be more representative of society…. Rules to make it harder to escape the responsibility.”

Juries are picked on a random basis. Judges say to be tried by a jury is to have the best trial anywhere in the World. To have an agenda for juries is not sustainable. It is thought that the ‘twelve jurors have a breadth of experience’.

This proposal may only be backed by a handful of judges, who may not be convinced that in certain cases the jury may be over represented by one type of nationality. To be tried by twelve people who have different experiences as well as be from different cultures would make the law accepted and show that it is not just a constitutional right, but that these people will meet briefly and give a good immediate reaction, their only responsibility is to be a normal human being..

To allow the trial judge to cross – examine the jury prior to giving a verdict would not be possible as it is incompatible with Contempt of Court Act 1981,  the instrument which allows the Court of Appeal the rights to investigate any procedural improprieties in the jury’s verdict. This may cause impartiality of the jury to be lost..

In relation to point 3:  

“The existing right to elect trial by jury is so long established in our criminal justice system and valued so highly that its total abrogation requires very compelling reasons. We doubt that such a radical change would be sufficiently acceptable to public and professional opinion to enable it to be implemented. It would undermine the trust and support the criminal justice system at present commands among the general public”    H.M.S.O. (1975)

At present it is possible for a jury not to be present when the case in hand has a long custodial sentence attached, CPIA 1996 c.25 s.28. Due to the nature of either – way offences, I think the option for mode of trial is a humane choice being allowed. If the case relies on information that is likely to cause distress. i.e. In relation to fraudulent and unethical cases. The Bar Council believe that in many cases there is a need for the defendant to beat the system, that this is a good way of doing it. It depends upon the type of person, whether they are good or bad in nature and the type of grave offence committed.  

The 1993 James Committee report believes that removing the defendants right on mode of trial would lead to, a more rational distribution of cases from higher and lower court. There seems to be disrepute in the ability for the magistrates to give shorter sentences and not doing so.

“….It would be quite unacceptable for the courts to discriminate in this way. It would offend against the principle of equality before the law if particular classes of people, or people of some standing in the community, were able, in effect to choose their tribunal, while others were denied that choice”. James Report..

The final point regarding requires the judge to instigate the fitness to plead, innocent or guilty, should be left to the judge, would enable the case to be judged with a specialist knowledge.

“There is evidence that people who know they will get a custodial sentence give a fake plea in order to waste the courts time. By getting the plea from the start will ensure that ‘cracked cases’ are kept to a minimum, where there are procedural improprieties in the turning up of experts and witnesses”.  Liberty ..

CRIMINAL JUSTICE BOARD

The Main points are referred to:

1. A new board to replace ‘Strategic Planning and Trial Issues Groups’
2. Aided by their Local boards.
3. A Criminal Case Management Agency
4. A Criminal Justice Council

Lord Auld wants an efficient structure with clear lines of communication and to identify accountability. This will allow more integration and a new electronic case management system. The current system relies on three boards, two were mentioned above and the third is the technology department. At present there is no overall direction for the criminal justice system, however what Auld proposes has not taken consideration of the availability of funds needed to undertake such a movement. Justice’s response

“Auld failed to set overall objectives for reform of the system and to supply a framework for reform”.

The response of the Bar Council and LAG believe that the creation of the new boards would allow faster implementation of electronic case management, which would enable one case to be viewed by various departments.

 The Magistrates Courts’ Committee, the Justices’ clerk’s society and the Association of Chief Police Officers, reject the ideas of making the system more streamlined. The MCC response to Auld’s report.

“….Will remove local decision – making and accountability. It is alarming what he has proposed.

Legal Action Group says that for implementation happening at breakneck speed will do more bad than it will good. They believe the government should aid in preparing to codify the criminal law.

The Bar Council gives support for creating the criminal code and an on – line sentencing information service. They want the system to work better for society.

UNIFIED CRIMINAL COURT

The main points:

1. To replace Crown and Magistrates courts
2. To introduce an intermediate tier
3. Either – way cases looked at from the defendant’s worst point of view and sent to correct jurisdiction.
4. To replace the Magistrates’ committees and the Court Service even if unification not done.

The idea of a unified criminal court will better enable the courts to process cases in a more systematic and efficient way. Auld says in defence of a unified court.

“Although different cases may call for different tribunals, practices and procedures, each should be capable of providing a fair hearing and a just outcome”.

 

The aim of Auld’s review was to consider practices and procedures in the criminal courts with a view to ensuring fairness and efficiency, having regard to the interests of all parties, thereby promoting public confidence. Surely justice and fairness are paramount. With a unified court, in either – way cases, the accused should have no absolute right to be tried in the higher level of the court, but that in all cases the court shall decide in what court the case would be tried basing that decision primarily on the severity of likely sentence if the defendant is convicted. In particular cases it would be possible to allocate to a higher court, or to have a high court judge sit in a lower court, if it was felt appropriate. The system will ensure that once a case starts on one level it will be judged at that level. The appropriate route for an appeal is by going up one level.

Legal Action Group’s response.

“….The Government is moving too fast in implementing piecemeal initiatives, the process needs to be broken down”.

Justice’s response.

“There is no conceptual framework in the Criminal Justice System, therefore a hard task to specify what needs to be done to achieve that”..

On introducing a middle – tier. The Law Society’s response.

“….The costs of running a middle – tier system will greatly outweigh the benefits”.

President says         

“The Government have rushed into passing legislation for the English legal system to make it more coherent”. The president would like to be involved in what the Government plan to propose in the White Paper.

The requirement of a third tier is due to some cases requiring specialist knowledge. Due to costs of trial, being dependant on how long they last and in what court, I believe this will make the courts more efficient, but there is no valid argument in favour of helping restorative justice. The latest development means that the lower courts will be handling some of the administration of the Crown court’s..

The White Paper

In 2002 the Government issued its guidelines for implanting into the current criminal justice system. It’s name implies that more is being done in order for the people to be confident in their justice system.

The points I have mentioned from Auld’s report are:

        A unified criminal court and,

        A new Criminal Justice Board and,

        Jury rethinking.

In response to Auld’s review the Government has given a number of proposals to be taken up by the relevant agencies. According to the publication there is no mention of a unified court, however the Magistrates will have their sentencing power increased to 12 months and in some cases 18 months. The Government have backed away from legislation which would allow the judge to question the verdict. This will allow for greater transparency in the way a case is handled. There will be perfect information available, which will be the responsibility of the courts and not the police.

There will be a new body to deal and help effectuate a codified criminal law, as well as the change of certain classes of offences to be dealt with in an efficient way, i.e. telling the defendant the charges at the police station, etc. There is no mention of a new body to take control of ‘over – all direction’, of the English legal system. The Law Commission and The Bar Council and The Royal Commission on Crime and Justice are required by the Government in relation to the constitution.

The jury is not able to be changed in many ways, due to its constitutional nature. It will be possible for juveniles to be tried by either a High Curt judge or normal and two lay magistrates in grave offences, as before they were tried before a jury. I believe they require a more social aspect when dealing with young adults.

Conclusion

The idea the government is trying to get, is to commission someone that will do a lot of research into the current practices, in this case, the workings of the entry – level courts, the way in which they interact with the rest of the functions of the state, then try to issue the necessary guidelines to the departments in order for it to work. It is important for the solicitors, police, probation and the staff who form part of that system to be able to ensure they are able to work within it and provide a service that is regarded to be second to none. The Government relies on experts to create a sound environment for its people, who are the research candidates.

Auld’s report is not a coherent framework for change, piece – meal initiatives provide a way of change over time through small changes in the framework, this is a slower progress but, it can be sustained, most of what Auld researched did not form part of the White Paper. His report does not justify why the courts should take such a direction, the way funds will be raised and allocated in taking such measures.

With any report there are bound to be people who oppose it. Especially those that are affected most by it. Various bodies of the government go due to reform and it is not safe to streamline when the ideas you wish to occur, like seeing all the defendants, one by one, having a perfect jury, all the necessary evidence and witnesses and keeping within time limits, the costs associated with seeing each person and being able to ensure that each person is getting the best treatment.   There is scope for improvement but it cannot be free.

The system has contained in it the dictum of the ‘Separation of Powers’, this enables the three functions of the state to work alongside each other, where neither wields too much power. The Home Office, (executive function), has continually interfered with the judiciary, either due to conflicting policy, (For example Myra Hindley, and the Guildford 4), due to their release dates, which were quashed. Only by the ‘executive’, interfering with the ‘legislature’ system. Since 1981 there has been performance measures issued to magistrate courts, by the Home Office1, MIS related to key indicators to be achieved by the Magistrates. This was to make the court a business as such.

         

Bibliography

1. Text and Materials on the Criminal Justice Process, 1995, Nicola Padfield, Butterworths.
2. The New Politics of Criminal Justice. 1998, Ann James, Longman
3. Doing Research on Crime and Justice. 2000, Roy D. King, Oxford Uni. Press.
4. Criminal Justice. 1978, Martin Robertson.
5. Cases and Materials on the English Legal System. 7th edn, Michael Zander, Butterworths.
6. Law and Modern Society. P.S. Atiyah.

References

1. CJS White Paper ‘Justice for All’. 2002
2. Lord Justice Auld ‘Review into the Criminal courts’
3. The Bar Council and General Council of the Bar responses to the ‘White Paper’ and Auld’s Review.
4. Attorney – Generals Review of the Year 2001 - 2002

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