Fast-track justice hits a brick wall

The national pilot for fast-track justice has so far done nothing to ease the minds of lawyers, who see the scheme as a disaster in the making. Katherine Burke reports.

Six weeks into the national pilot, fast-track justice seems to be proving its detractors right.

As both the police and the CPS rush to prepare cases overnight with no extra resources, defence lawyers flit from court to court to attend hastily listed cases – many of which are adjourned due to incomplete evidence.

Roger Ede, despite being the Law Society's representative on the inter-agency group which devised the scheme, is firmly opposed to the proposals, describing them as “ill thought out” and “impractical”. And defence solicitors in pilot areas complain of serial adjournments, poor evidence disclosure and logistical problems covering special courts.

So is this what is in store for defence lawyers across England and Wales when fast-track justice goes national next October?

For now, six areas across the UK and Wales are piloting speedy justice for six months: Blackburn and Burnley, south London, Northamptonshire, northern Staffordshire, north Wales and Tyneside.

The changes are based on the recommendations of the Narey Report (published in October 1997 and written by Martin Narey, a senior Home Office official), which examined ways of combating the “culture of adjournment” in the criminal justice system.

Under the pilots, anyone arrested on straightforward, non-indictable offences before midnight is bailed to appear before a special Narey court the following afternoon.

A CPS solicitor and some junior staff spend their mornings at a main police station, getting the prosecution file ready in time for afternoon court.

But Brian Mather, sole partner at Newcastle firm Mitchell Dodds Brown & Co, says the pace is too fast for the prosecution to work without more resources.

“Next-day hearings are causing a lot of problems for everybody concerned. It's not a lot of time if you are charged at one o'clock in the morning [but arrested before midnight] and you're at court at two o'clock the same day,” says Mather, who is on the steering group for the Tyneside pilot.

“A thousand police officers in Newcastle have had to be re-rostered for this pilot scheme and no additional funding has been provided.”

Mather suggests that bailing suspects for between seven and 14 days before they appear in court would be a more sensible system and an improvement on the current four or five-week wait.

Ede, the only solicitor on the 21-member Trial Issues Group, which helped devise the fast-track justice scheme, also doubts that Narey courts will cut adjournment numbers.

“Research has shown that a fair proportion of cases aren't going to be properly prepared,” he says.

“Lawyers aren't going to advise clients to plead guilty unless the evidence is there, and you may need an adjournment for four weeks for a pre-sentence report, or a statement about compensation from the victim.”

Ede says his colleagues on the steering committee have failed to consider the complexities of the legal system: “One of the things I kept asking is, 'Give me an example of the typical case and talk me through how that would go through the system'. And the panel gave me a blank look.”

In Newcastle, some Narey court cases have had to be adjourned because the statement from the relevant police officer on night duty is not available.

Half of the eight solicitors who regularly use Gateshead Magistrates' Court complain that the prosecution routinely fails to disclose enough evidence for them to advise their clients.

Defence lawyers have to think on their feet with no preparation – increasing the risk of mistakes being made.

“With Narey, unless you've been at the police station interview, you will know nothing until moments before the case,” says Charles Weidner, a partner at Gateshead-based law firm Edward Hathaway & Co.

“Then you've got to make snap decisions over whether you can proceed, whether you should proceed, or whether you should adjourn.”

Weidner estimates that in approximately one in 10 Narey cases the disclosure has been “almost non-existent”.

“For example, I had a youth case, an allegation of burglary, and all I had was two sheets of paper with a list of prosecution witnesses, and by the side of each name was a two or three-line comment,” says Weidner.

Poor disclosure of evidence puts defence lawyers in a no-win situation. If a solicitor advises his client to plead guilty based on patchy evidence, he risks being sued for negligence.

But if he adjourns for further evidence, he will not get paid for the hearing unless legal aid is granted. Furthermore, defence lawyers who call adjournments may stand accused of spinning out cases by the Home Office.

Under the scheme, if a police officer has witnessed the incident, the defendant goes to the guilty pleas court – known as an early first hearing (EFH) – where most defendants will be expected to use the court duty solicitor scheme.

At the EFH defendants are prosecuted by a lay CPS employee, presided over by two or three magistrates.

But, if a suspect says at the police station that they plan to fight the charges, or if their case is an indictable-only matter, they will attend an early administrative hearing (EAH) – presided over by a lone clerk or justice – to discuss legal aid issues and plan the case.

One of the advantages of the pilots is that solicitors on the duty scheme get paid automatically for the first and second hearings in the Narey court. They do not need to wait for a legal aid order, even if they are not rostered as the court duty solicitor that day.

This means that solicitors get paid for representing clients for some minor offences such as excess alcohol, that they formerly would have had to decline or do privately.

Defence lawyers must also juggle their Narey cases with hearings in other courts – a particularly taxing problem in London, where there is the highest proportion of courts per square mile in the country.

Gateshead solicitor Weidner complains that the Narey pilots leave him little time to do civil work and interview clients and witnesses in the afternoons.

He and two other criminal defence solicitors at the firm have set up a rota so that one of them is covering the Narey court at Gateshead each day.

But aside from the practical problems, fast-track justice also raises wider ethical issues. Some legal experts cite the dilution of the principle of innocence until proven guilty, and the erosion of the distinction between the police and prosecution, as consequences of the system.

“CPS staff working in police stations is a worrying development because one of the points about setting up the CPS was to ensure the independence of the prosecution,” says Vicki Chapman, head of policy at the Legal Aid Group.

Fast-track schemes could also encourage the police to exert unfair pressure on defendants to plead guilty to get their case over with.

“Unless police and prosecution are properly resourced it's going to reduce the quality of justice, not speed it up,” says Stephen Wedd, chairman of the Criminal Law Solicitors' Association (CLSA).

He adds: “The reforms could mean speed at the expense of justice.”

Many lawyers cannot understand why the Government has chosen this method of speeding up justice, when replacing the lay bench with professionals would be much simpler and more effective.

“The safest way of speeding up justice would be to have stipendiary magistrates,” says Rodney Warren, a sole practitioner in Eastbourne.

“What they are paid economically is minute compared to the costs of administration of justice. Each stipendiary can deal with three courts of a lay justice.”

Although the Government's plans for speedy justice are undeniably experiencing teething problems, the message from lawyers' leaders still appears to be watch and wait.

Mather, who administrates the duty solicitor scheme for Newcastle, has sent a circular to members asking them to keep notes on any difficulties they are having with the pilots.

The Law Society does not plan to call another meeting of representatives involved in the six pilots until February.

And the CLSA has told members to be co-operative with the scheme, so that if it fails, they cannot be blamed for dragging their feet.

“I'm sure the powers that be will make it work during the pilot period, because nobody wants it on their CV that they blew out on a national pilot,” says Hamish Young, a partner at CR Burton & Co in Penge, south London.

“But I have the gravest doubts on how it can possibly work when it goes national.”