Aspects of the criminal justice system, such as the use of public interest immunity certificates and the latitude of judges in sentencing repeat offenders, have been much in the news of late.
Lord Justice Woolf's spotlight on the civil justice system has led to calls for a similar examination of the criminal justice system.
Many criminal practitioners believe that recent reforms have been reform for reform's sake and an example of politicians' attempts to ingratiate themselves with the electorate.
They believe that the abolition of the right to silence will lead to longer trials and the disbursement of more public money. Many also consider that the abandonment of committal proceedings was not properly thought through.
Anthony Burton, partner at Simons Muirhead & Burton, says: “Woolf is taking a wholesale approach to the reform of civil justice, whereas crime – in procedure, evidence and substantive law – has been subject to only piecemeal adjustments over the years. For instance, disclosure has been tinkered with. What the criminal system really needs now is a complete overhaul.”
Criminal practitioners believe there is sufficient political will for criminal law to be codified soon, and say it is absurd that so much of the law is still couched in archaic language.
Perhaps more of a priority is “the need to decide on the role of prison and parole within the system, to consider the proper role of sentencing – whether it is for 'just deserts', rehabilitation or pure punishment – and to establish a more consistent sentencing policy. This requires political goodwill, top-level judicial will, and a good deal of research.”
It is unlikely that sentencing is a candidate for top-to-bottom reform as there appears to be little difference between the current government and any future government on the issue.
Not everyone is advocating wholesale reform, particularly after years of tinkering. Keith Oliver, serious fraud specialist at Peters & Peters, realises the system is not perfect. But he says: “There is no great concern to reform it. I am unhappy at recent legislation as most practitioners are, but there seems to be nothing of concern in the pipeline. The criminal system should be judged on its ability to bring cases to trial in a reasonable time at reasonable expense and at the same time, ensure fairness.”
“If Woolf's reforms are adopted, there will be a knock-on effect on the criminal system, and criminal jurisdiction has always been more abreast of the field than the civil system. Perhaps now we can have a couple of years of quiet consolidation so we can get on with the job.”
Oliver contends that piecemeal change can be very effective, particularly if it is brought about by the judges. He points out that Lord Justice Phillips brought in a number of considerable changes during the Maxwell brothers' trial.
Says Oliver: “Here was a judge who was prepared to ensure that the case was kept as manageable as possible. He kept the issues as clear as possible for the jury.
“How many court days are lost in legal argument, with the jury moving in and out of court? In the Maxwell trial, the court sat with the jury from 9.30 to 1.30 with a 15 minute break. Argument was maximised before the jury, and the legal issues were sorted out in the afternoon. It was an intensive day, but it allowed maximum preparation time, because you could work on documents in the afternoon. It was a change that everyone applauded.”
One reform that was pioneered on the Western Circuit under its then leader Charles Parry is the system of graduated fees for barristers which, according to current circuit leader Nigel Pascoe, will shortly be put into effect.
Another change that the courts are getting to grips with is the use of technology. While there has been a historical reliance on hard copy, documents can now be scanned into a computer and shown on screen. This clearly has its use in fraud trials where there may be a high volume of paperwork. Another leading criminal practitioner adds: “The technology has applications in civil jurisdiction as well. The sooner people get used to it, the better.”
One thorny topic is the continued use of juries in fraud trials, but Oliver has little time for those who call for them to be replaced by specialist panels. He says: “The very same people who were calling for an end to jury trials in fraud after the Maxwell verdict would have been congratulating the jury had there been a conviction.”