Control and management of heavy fraud and other complex criminal cases - Criminal Procedure Rules
A protocol issued by the Lord Chief Justice of England and Wales – 22 March 2005
There is a broad consensus that the length of fraud and trials of other complex crimes must be controlled within proper bounds in order:
- To enable the jury to retain and assess the evidence which they have heard. If the trial is so long that the jury cannot do this, then the trial is not fair either to the prosecution or the defence.
- To make proper use of limited public resources: see Jisl  EWCA Crim 696 at  – .
There is also a consensus that no trial should be permitted to exceed a given period, save in exceptional circumstances; some favour 3 months, others an outer limit of 6 months. Whatever view is taken, it is essential that the current length of trials is brought back to an acceptable and proper duration.
This Protocol supplements the Criminal Procedure Rules and summarises good practice which experience has shown may assist in bringing about some reduction in the length of trials of fraud and other crimes that result in complex trials. Flexibility of application of this Protocol according to the needs of each case is essential; it is designed to inform but not to prescribe.
This Protocol is primarily directed towards cases which are likely to last eight weeks or longer. It should also be followed, however, in all cases estimated to last more than four weeks. This Protocol applies to trials by jury, but many of the principles will be applicable if trials without a jury are permitted under s. 43 of the Criminal Justice Act 2003.
The best handling technique for a long case is continuous management by an experienced Judge nominated for the purpose.
It is intended that this Protocol be kept up to date; any further practices or techniques found to be successful in the management of complex cases should be notified to the office of the Lord Chief Justice.
(i) The role of the prosecuting authority and the judge
- Unlike other European countries, a judge in England and Wales does not directly control the investigative process; that is the responsibility of the Investigating Authority, and in turn the Prosecuting Authority and the prosecution advocate. Experience has shown that a prosecution lawyer (who must be of sufficient experience and who will be a member of the team at trial) and the prosecution advocate, if different, should be involved in the investigation as soon as it appears that a heavy fraud trial or other complex criminal trial is likely to ensue. The costs that this early preparation will incur will be saved many times over in the long run.
- The judge can and should exert a substantial and beneficial influence by making it clear that, generally speaking, trials should be kept within manageable limits. In most cases 3 months should be the target outer limit, but there will be cases where a duration of 6 months, or in exceptional circumstances, even longer may be inevitable.
- At present many interviews are too long and too unstructured. This has a knock-on effect on the length of trials. Interviews should provide an opportunity for suspects to respond to the allegations against them. They should not be an occasion to discuss every document in the case. It should become clear from judicial rulings that interviews of this kind are a waste of resources.
- The suspect must be given sufficient information before or at the interview to enable them to meet the questions fairly and answer them honestly; the information is not provided to give the suspect the opportunity to manufacture a false story which fits undisputable facts.
- It is often helpful if the principal documents are provided either in advance of the interview or shown as the interview progresses; asking detailed questions about events a considerable period in the past without reference to the documents is often not very helpful.
(iii)The prosecution and defence teams
The Prosecution Team
While instructed, it is for the lead advocate for the prosecution to take all necessary decisions in the presentation and general conduct of the prosecution case in court. The prosecution lead advocate will be treated by the court as having that responsibility.
However, in relation to policy decisions, the lead advocate for the prosecution must not give an indication or undertaking which binds the prosecution without first discussing the issue with the Director of the Prosecuting authority or other senior officer.
“Policy” decisions should be understood as referring to non-evidential decisions on: the acceptance of pleas of guilty to lesser counts or groups of counts or available alternatives: offering no evidence on particular counts; consideration of a re-trial; whether to lodge an appeal; certification of a point of law; and the withdrawal of the prosecution as a whole (for further information see the ‘Farquharson Guidelines’ on the role and responsibilities of the prosecution advocate).
- EM>The Defence Team
In each case, the lead advocate for the defence will be treated by the court as having responsibility to the court for the presentation and general conduct of the defence case.
- In each case, a case progression officer must be assigned by the court, prosecution and defence from the time of the first hearing when directions are given (as referred to in paragraph 3 (iii)) until the conclusion of the trial.
- In each case where there are multiple defendants, the LSC will need to consider carefully the extent and level of representation necessary.
(iv)Initial consideration of the length of a case
If the prosecutor in charge of the case from the Prosecuting Authority or the lead advocate for the prosecution consider that the case as formulated is likely to last more than 8 weeks, the case should be referred in accordance with arrangements made by the Prosecuting Authority to a more senior prosecutor. The senior prosecutor will consider whether it is desirable for the case to be prosecuted in that way or whether some steps might be taken to reduce its likely length, whilst at the same time ensuring that the public interest is served.
Any case likely to last 6 months or more must be referred to the Director of the Prosecuting Authority so that similar considerations can take place.
(v) Notification of cases likely to last more than 8 weeks
Special arrangements will be put in place for the early notification by the CPS and other Prosecuting Authorities, to the LSC and to a single designated officer of the Court in each Region (Circuit) of any case which the CPS or other Prosecuting Authority consider likely to last over 8 weeks.
The court will allocate such cases and other complex cases likely to last 4 weeks or more to a specific venue suitable for the trial in question, taking into account the convenience to witnesses, the parties, the availability of time at that location, and all other relevant considerations.
2. DESIGNATION OF THE TRIAL JUDGE
(i) The assignment of a judge
- In any complex case which is expected to last more than four weeks, the trial judge will be assigned under the direction of the Presiding Judges at the earliest possible moment.
- Thereafter the assigned judge should manage that case “from cradle to grave”; it is essential that the same judge manages the case from the time of his assignment and that arrangements are made for him to be able to do so. It is recognised that in certain court centres with a large turnover of heavy cases (e.g. Southwark) this objective is more difficult to achieve. But in those court centres there are teams of specialist judges, who are more readily able to handle cases which the assigned judge cannot continue with because of unexpected events; even at such courts, there must be no exception to the principle that one judge must handle all the pre-trial hearings until the case is assigned to another judge.
3. CASE MANAGEMENT
- The number, length and organisation of case management hearings will, of course, depend critically on the circumstances and complexity of the individual case. However, thorough, well-prepared and extended case management hearings will save court time and costs overall.
- Effective case management of heavy fraud and other complex criminal cases requires the judge to have a much more detailed grasp of the case than may be necessary for many other Plea and Case Management Hearings (PCMHs). Though it is for the judge in each case to decide how much pre-reading time he needs so that the judge is on top of the case, it is not always a sensible use of judicial time to allocate a series of reading days, during which the judge sits alone in his room, working through numerous boxes of ring binders.
See paragraph 3 (iv) (e) below.
(ii)Fixing the trial date
Although it is important that the trial date should be fixed as early as possible, this may not always be the right course. There are two principal alternatives:
- The trial date should be fixed at the first opportunity – i.e. at the first (and usually short) directions hearing referred to in subparagraph (iii). From then on everyone must work to that date. All orders and pre-trial steps should be timetabled to fit in with that date. All advocates and the judge should take note of this date, in the expectation that the trial will proceed on the date determined.
- The trial date should not be fixed until the issues have been explored at a full case management hearing (referred to in subparagraph (iv), after the advocates on both sides have done some serious work on the case. Only then can the length of the trial be estimated.
Which is apposite must depend on the circumstances of each case, but the earlier it is possible to fix a trial date, by reference to a proper estimate and a timetable set by reference to the trial date, the better.
It is generally to be expected that once a trial is fixed on the basis of the estimate provided, that it will be increased if, and only if, the party seeking to extend the time justifies why the original estimate is no longer appropriate.
(iii)The first hearing for the giving of initial directions
At the first opportunity the assigned judge should hold a short hearing to give initial directions. The directions on this occasion might well include:
- That there should be a full case management hearing on, or commencing on, a specified future date by which time the parties will be properly prepared for a meaningful hearing and the defence will have full instructions.
- That the prosecution should provide an outline written statement of the prosecution case at least one week in advance of that case management hearing, outlining in simple terms:
- The key facts on which it relies.
- The key evidence by which the prosecution seeks to prove the facts.
- That a core reading list and core bundle for the case management hearing should be delivered at least one week in advance.
- Preliminary directions about disclosure: see paragraph 4.
(iv)The first Case Management Hearing
- At the first case management hearing:
- The prosecution advocate should be given the opportunity to highlight any points from the prosecution outline statement of case (which will have been delivered at least a week in advance).
- Each defence advocate should be asked to outline the defence.
- There should then be a real dialogue between the judge and all advocates for the purpose of identifying:
- The focus of the prosecution case.
- The common ground.
- The real issues in the case. (Rule 3.2 of the Criminal Procedure Rules.)
- The judge will try to generate a spirit of co-operation between the court and the advocates on all sides. The expeditious conduct of the trial and a focussing on the real issues must be in the interests of all parties. It cannot be in the interests of any defendant for his good points to become lost in a welter of uncontroversial or irrelevant evidence.
- In many fraud cases the primary facts are not seriously disputed. The real issue is what each defendant knew and whether that defendant was dishonest. Once the judge has identified what is in dispute and what is not in dispute, the judge can then discuss with the advocate how the trial should be structured, what can be dealt with by admissions or agreed facts, what uncontroversial matters should be proved by concise oral evidence, what timetabling can be required under Rule 3.10 Criminal Procedure Rules, and other directions.
- In particularly heavy fraud or complex cases the judge may possibly consider it necessary to allocate a whole week for a case management hearing. If that week is used wisely, many further weeks of trial time can be saved. In the gaps which will inevitably arise during that week (for example while the advocates are exploring matters raised by the judge) the judge can do a substantial amount of informed reading. The case has come “alive” at this stage. Indeed, in a really heavy fraud case, if the judge fixes one or more case management hearings on this scale, there will be need for fewer formal reading days. Moreover a huge amount can be achieved in the pre-trial stage, if all trial advocates are gathered in the same place, focussing on the case at the same time, for several days consecutively.
- Requiring the defence to serve proper case statements may enable the court to identify:
- what is common ground and
- the real issues.
- Likewise this objective may be achieved by requiring the prosecution to serve draft admissions by a specified date and by requiring the defence to respond within a specified number of weeks.
(v)Further Case Management Hearings
- The date of the next case management hearing should be fixed at the conclusion of the hearing so that there is no delay in having to fix the date through listing offices, clerks and others.
- If one is looking at a trial which threatens to run for months, pre-trial case management on an intensive scale is essential.
(vi)Consideration of the length of the trial
- Case management on the above lines, the procedure set out in paragraph 1 (iv), may still be insufficient to reduce the trial to a manageable length; generally a trial of 3 months should be the target, but there will be cases where a duration of 6 months or, in exceptional circumstances, even longer may be inevitable.
- If the trial is not estimated to be within a manageable length, it will be necessary for the judge to consider what steps should be taken to reduce the length of the trial, whilst still ensuring that the prosecution has the opportunity of placing the full criminality before the court.
- To assist the judge in this task,
- The lead advocate for the prosecution should be asked to explain why the prosecution have rejected a shorter way of proceeding; they may also be asked to divide the case into sections of evidence and explain the scope of each section and the need for each section.
- The lead advocates for the prosecution and for the defence should be prepared to put forward in writing, if requested, ways in which a case estimated to last more than three months can be shortened, including possible severance of counts or defendants, exclusions of sections of the case or of evidence or areas of the case where admissions can be made.
- One course the judge may consider is pruning the indictment by omitting certain charges and/or by omitting certain defendants. The judge must not usurp the function of the prosecution in this regard, and he must bear in mind that he will, at the outset, know less about the case than the advocates. The aim is achieve fairness to all parties.
- Nevertheless, the judge does have two methods of pruning available for use in appropriate circumstances:
- Persuading the prosecution that it is not worthwhile pursuing certain charges and/or certain defendants.
- Severing the indictment. Severance for reasons of case management alone is perfectly proper, although judges should have regard to any representations made by the prosecution that severance would weaken their case. Indeed the judge’s hand will be strengthened in this regard by rule 1.1 (2) (g) of the Criminal Procedure Rules. However, before using what may be seen as a blunt instrument, the judge should insist on seeing full defence statements of all affected defendants. Severance may be unfair to the prosecution if, for example, there is a cut-throat defence in prospect. For example, the defence of the principal defendant may be that the defendant relied on the advice of his accountant or solicitor that what was happening was acceptable. The defence of the professional may be that he gave no such advice. Against that background, it might be unfair to the prosecution to order separate trials of the two defendants.
(vii)The exercise of the powers
- The Criminal Procedure Rules require the court to take a more active part in case management. These are salutary provisions which should bring to an end interminable criminal trials of the kind which the Court of Appeal criticised in Jisl  EWCA 696 at  – .
- Nevertheless these salutary provisions do not have to be used on every occasion. Where the advocates have done their job properly, by narrowing the issues, pruning the evidence and so forth, it may be quite inappropriate for the judge to “weigh in” and start cutting out more evidence or more charges of his own volition. It behoves the judge to make a careful assessment of the degree of judicial intervention which is warranted in each case.
- The note of caution in the previous paragraph is supported by certain experience which has been gained of the Civil Procedure Rules (on which the Criminal Procedure Rules are based). The CPR contain valuable and efficacious provisions for case management by the judge on his own initiative which have led to huge savings of court time and costs. Surveys by the Law Society have shown that the CPR have been generally welcomed by court users and the profession, but there have been reported to have been isolated instances in which the parties to civil litigation have faithfully complied with both the letter and the spirit of the CPR, and have then been aggrieved by what was perceived to be unnecessary intermeddling by the court.
- Early identification of the subject matter of expert evidence to be adduced by the prosecution and the defence should be made as early as possible, preferably at the directions hearing.
- Following the exchange of expert evidence, any areas of disagreement should be identified and a direction should generally be made requiring the experts to meet and prepare, after discussion, a joint statement identifying points of agreement and contention and areas where the prosecution is put to proof on matters of which a positive case to the contrary is not advanced by the defence. After the statement has been prepared it should be served on the court, the prosecution and the defence. In some cases, it might be appropriate to provide that to the jury.
- Where a prosecution is based upon many months’ observation or surveillance evidence and it appears that it is capable of effective presentation based on a shorter period, the advocate should be required to justify the evidence of such observations before it is permitted to be adduced, either substantially or in its entirety.
- Schedules should be provided to cover as much of the evidence as possible and admissions sought.
In fraud cases the volume of documentation obtained by the prosecution is liable to be immense. The problems of disclosure are intractable and have the potential to disrupt the entire trial process.
- The prosecution lawyer (and the prosecution advocate if different) brought in at the outset, as set out in paragraph 1 (i)(a), each have a continuing responsibility to discharge the prosecution's duty of disclosure, either personally or by delegation, in accordance with the Attorney General's Guidelines on Disclosure.
- The prosecution should only disclose those documents which are relevant (i.e. likely to assist the defence or undermine the prosecution – see s. 3 (1) of CPIA 1996 and the provisions of the CJA 2003).
- It is almost always undesirable to give the “warehouse key” to the defence for two reasons:
- This amounts to an abrogation of the responsibility of the prosecution;
- The defence solicitors may spend a disproportionate amount of time and incur disproportionate costs trawling through a morass of documents.
- At the outset the judge should set a timetable for dealing with disclosure issues. In particular, the judge should fix a date by which all defence applications for specific disclosure must be made. In this regard, it is relevant that the defendants are likely to be intelligent people, who know their own business affairs and who (for the most part) will know what documents or categories of documents they are looking for.
- At the outset (and before the cut-off date for specific disclosure applications) the judge should ask the defence to indicate what documents they are interested in and from what source. A general list is not an acceptable response to this request. The judge should insist upon a list which is specific, manageable and realistic. The judge may also require justification of any request.
- In non-fraud cases, the same considerations apply, but some may be different:
- It is not possible to approach many non-fraud cases on the basis that the defendant knows what is there or what they are looking for. But on the other hand this should not be turned into an excuse for a “fishing expedition”; the judge should insist on knowing the issue to which a request for disclosure applies.
- If the bona fides of the investigation is called into question, a judge will be concerned to see that there has been independent and effective appraisal of the documents contained in the disclosure schedule and that its contents are adequate. In appropriate cases where this issue has arisen and there are grounds which show there is a real issue, consideration should be given to receiving evidence on oath from the senior investigating officer at an early case management hearing.
5. ABUSE OF PROCESS
- Applications to stay or dismiss for abuse of process have become a normal feature of heavy and complex cases. Such applications may be based upon delay and the health of defendants.
- Applications in relation to absent special circumstances tend to be unsuccessful and not to be pursued on appeal. For this reason there is comparatively little Court of Appeal guidance: but see: Harris and Howells  EWCA Crim 486. It should be noted that abuse of process is not there to discipline the prosecution or the police.
- The arguments on both sides must be reduced to writing. Oral evidence is seldom relevant.
- The judge should direct full written submissions (rather than “skeleton arguments”) on any abuse application in accordance with a timetable set by him; these should identify any element of prejudice the defendant is alleged to have suffered.
- The Judge should normally aim to conclude the hearing within an absolute maximum limit of one day, if necessary in accordance with a timetable. The parties should therefore prepare their papers on this basis and not expect the judge to allow the oral hearing to be anything more than an occasion to highlight concisely their arguments and answer any questions the court may have of them; applications will not be allowed to drag on.
(i)The particular hazard of heavy fraud trials
A heavy fraud or other complex trial has the potential to lose direction and focus. This is a disaster for three reasons:
- The jury will lose track of the evidence, thereby prejudicing both prosecution and defence.
- The burden on the defendants, the judge and indeed all involved will become intolerable.
- Scarce public resources are wasted. Other prosecutions are delayed or – worse – may never happen. Fraud which is detected but not prosecuted (for resource reasons) undermines confidence.
(ii)Judicial mastery of the case
- It is necessary for the judge to exercise firm control over the conduct of the trial at all stages.
- In order to do this the judge must read the witness statements and the documents, so that the judge can discuss case management issues with the advocates on – almost – an equal footing.
- To this end, the judge should not set aside weeks or even days for pre-reading (see paragraph 3 (i)(b) above). Hopefully the judge will have gained a good grasp of the evidence during the case management hearings. Nevertheless, realistic reading time must be provided for the judge in advance of trial.
- The role of the judge in a heavy fraud or other complex criminal trial is different from his/her role in a “conventional” criminal trial. So far as possible, the judge should be freed from other duties and burdens, so that he/she can give the high degree of commitment which a heavy fraud trial requires. This will pay dividends in terms of saving weeks or months of court time.
(iii) The order of the evidence
- By the outset of the trial at the latest (and in most cases very much earlier) the judge must be provided with a schedule, showing the sequence of prosecution (and in an appropriate case defence) witnesses and the dates upon which they are expected to be called. This can only be prepared by discussion between prosecution and defence which the judge should expect, and say he/she expects, to take place: See: Criminal Procedure Rule 3.10. The schedule should, in so far as it relates to Prosecution witnesses, be developed in consultation with the witnesses, via the Witness Care Units, and with consideration given to their personal needs. Copies of the schedule should be provided for the Witness Service.
- The schedule should be kept under review by the trial judge and by the parties. If a case is running behind or ahead of schedule, each witness affected must be advised by the party who is calling that witness at the earliest opportunity.
- If an excessive amount of time is allowed for any witness, the judge can ask why. The judge may probe with the advocates whether the time envisaged for the evidence-in-chief or cross-examination (as the case may be) of a particular witness is really necessary.
(iv)Case management sessions
- The order of the evidence may have legitimately to be departed from. It will, however, be a useful for tool for monitoring the progress of the case. There should be periodic case management sessions, during which the judge engages the advocates upon a stock-taking exercise: asking, amongst other questions, “where are we going?” and “what is the relevance of the next three witnesses?”. This will be a valuable means of keeping the case on track. Rule 3.10 of the Criminal Procedure Rules will again assist the judge.
- The judge may wish to consider issuing the occasional use of “case management notes” to the advocates, in order to set out the judge's tentative views on where the trial may be going off track, which areas of future evidence are relevant and which may have become irrelevant (e.g. because of concessions, admissions in cross-examination and so forth). Such notes from the judge plus written responses from the advocates can, cautiously used, provide a valuable focus for debate during the periodic case management reviews held during the course of the trial.
(v)Controlling prolix cross-examination
- Setting rigid time limits in advance for cross-examination is rarely appropriate – as experience has shown in civil cases; but a timetable is essential so that the judge can exercise control and so that there is a clear target to aim at for the completion of the evidence of each witness. Moreover the judge can and should indicate when cross-examination is irrelevant, unnecessary or time wasting. The judge may limit the time for further cross-examination of a particular witness.
(vi)Electronic presentation of evidence
- Electronic presentation of evidence (EPE) has the potential to save huge amounts of time in fraud and other complex criminal trials and should be used more widely.
- HMCS is providing facilities for the easier use of EPE with a standard audio visual facility. Effectively managed, the savings in court time achieved by EPE more than justify the cost.
- There should still be a core bundle of those documents to which frequent reference will be made during the trial. The jury may wish to mark that bundle or to refer back to particular pages as the evidence progresses. EPE can be used for presenting all documents not contained in the core bundle.
- Greater use of other modern forms of graphical presentations should be made wherever possible.
(vii) Use of interviews
The Judge should consider extensive editing of self serving interviews, even when the defence want the jury to hear them in their entirety; such interviews are not evidence of the truth of their contents but merely of the defendant's reaction to the allegation.
- The jury should be informed as early as possible in the case as to what the issues are in a manner directed by the Judge.
- The jury must be regularly updated as to the trial timetable and the progress of the trial, subject to warnings as to the predictability of the trial process.
- Legal argument should be heard at times that causes the least inconvenience to jurors.
- It is useful to consider with the advocates whether written directions should be given to the jury and, if so, in what form.
(ix) Maxwell hours
- Maxwell hours should only be permitted after careful consideration and consultation with the Presiding Judge.
- Considerations in favour include:
- Legal argument can be accommodated without disturbing the jury;
- There is a better chance of a representative jury;
- Time is made available to the judge, advocates and experts to do useful work in the afternoons.
- Considerations against include:
- The lengthening of trials and the consequent waste of court time;
- The desirability of making full use of the jury once they have arrived at court;
- Shorter trials tend to diminish the need for special provisions e.g. there are fewer difficulties in empanelling more representative juries;
- They are unavailable if any defendant is in custody.
- It may often be the case that a maximum of one day of Maxwell hours a week is sufficient; if so, it should be timetabled in advance to enable all submissions by advocates, supported by skeleton arguments served in advance, to be dealt with in the period after 1:30 pm on that day.
If Livenote is used, it is important that all users continue to take a note of the evidence, otherwise considerable time is wasted in detailed reading of the entire daily transcript.
(i) Defence representation and defence costs
- Applications for change in representation in complex trials need special consideration; the ruling of HH Judge Wakerley QC (as he then was) in Asghar Ali has been circulated by the JSB.
- Problems have arisen when the Legal Services Commission have declined to allow advocates or solicitors to do certain work; on occasions the matter has been raised with the judge managing or trying the case.
- The Legal Services Commission has provided guidance to judges on how they can obtain information from the LSC as to the reasons for their decisions; further information in relation to this can be obtained from Nigel Field, Head of the Complex Crime Unit, Legal Services Commission, 29–37 Red Lion Street, London, WC1R 4PP.
(ii)Assistance to the Judge
Experience has shown that in some very heavy cases, the judge's burden can be substantially offset with the provision of a Judicial Assistant or other support and assistance.