Notes to accompany 1^st update, June 2005

This Practice Direction amends the Consolidated Criminal Practice Direction handed down by the Lord Chief Justice on 8 July 2002.

It replaces the existing Part IV.41 of the Consolidated Criminal Practice Direction (Plea and Directions Hearings). It adds a further part to Part V of the Consolidated Criminal Practice Direction and a further annex (Annex E), which sets out forms to be used under rule 3.11 (1) of the Criminal Procedure Rules. Those forms may be amended from time to time under the authority of the Lord Chief Justice to take account of changes in the law. They will be found, as amended, at the website of Her Majesty’s Courts Service.

This Practice Direction will take effect from 4^th April, 2005, when the Criminal Procedure Rules come into force. It applies to the sending, committal or transfer of cases by magistrates’ courts to the Crown Court for trial where that event takes place on or after that date, and to the subsequent management of those cases in the Crown Court. The existing Part IV.41 continues to apply to cases sent, committed or transferred for trial before that date. In cases to be tried in the magistrates' court this Practice Direction applies where a defendant pleads not guilty on or after that date.

This practice direction and the case progression forms to which it refers, are the product of an immense amount of work carried out over a number of months by members of the Criminal Procedure Rule Committee and others under the chairmanship of Lord Justice Hooper, to whom I am extremely grateful. The group has consulted widely and the practice direction and the forms reflect the result of that consultation.

I am confident that the forms for use in the magistrates’ courts do not present an extra burden on magistrates, court staff or practitioners. The form for use in cases to be tried summarily in magistrates’ courts provides a convenient method of recording essential information relating to the progress of the case and largely comprises directions which will apply by default. The directions that all the forms contain for the most part are dictated by the requirements of legislation, including the Criminal Procedure Rules themselves.

The case progression forms for use in cases to be sent, committed or transferred to the Crown Court also contain directions that will apply by default, subject to any contrary direction by the court. All the forms collect those requirements together in a way that I hope courts will find clear and convenient.

The only significant change that my practice direction will introduce is the replacement of what are now known as ‘plea and directions hearings’ in the Crown Court with ‘plea and case management hearings’. The ‘PCMH’, as it will be known, will take place later than the plea and directions hearings to encourage the fully effective use of that hearing and to discourage unnecessary and ineffective case management hearings in the Crown Court. Magistrates’ courts should order such a hearing in all cases that they send or commit for trial, in accordance with listing arrangements with the Crown Court, just as they do now.

The PCMH form to be used in the Crown Court has been the subject of particular controversy. Some courts and practitioners have the mistaken impression that a significant administrative burden is about to be imposed upon them. That is not so. Part of the explanation for this controversy is the fact that those who criticise the form probably base their criticism on earlier drafts. Concerns had been expressed about the length of the PCMH form. It had been suggested that there should be a separate form, to cover straightforward cases. The latest draft of the form does reduce to a minimum the matters upon which decisions may have to be made at a PCMH, even for the most straightforward of cases. If action is not taken to deal with them, they are just the issues that cause the problems the new approach to case management is intended to resolve. However, in response to the concerns, the form has been rearranged to deal initially with the questions that inevitably will arise in the great majority of cases. It then deals with the questions that only will arise from time to time. Users of the form will soon appreciate that, particularly in relation to questions of the latter kind, the form serves as no more than a valuable checklist. It ensures that matters that would, even prior to the new rules, have to be dealt with, are not overlooked.

However, to help those concerns it is only in pilot areas, chosen in consultation with Presiding and Resident Judges, that the forms should be used in accordance with the guidance notes. In other areas, while the form should still be used, the Resident Judges should exercise their discretion to ensure that the manner in which the form is used in their Court takes account of the views of the local criminal justice agencies and of practitioners. Bearing in mind that it has not been possible to arrange increased remuneration for the case management stage of the trial process they will no doubt conclude that for the time being it should be used as no more than a valuable checklist unless there is agreement to its greater use.

I shall review my practice direction and the associated forms in the light of experience and I shall welcome observations informed by that experience. Comments should be sent to the secretariat to the Criminal Procedure Rule Committee.

I confidently expect that the combined effect of the new Rules, the practice direction and the case progression forms will be to promote effective case preparation and result in the saving of time and, in time, significant reductions in unnecessary and wasted hearings of all kinds: with a corresponding increase in public confidence in the administration of criminal justice.

The fact that there are to be pilot areas at those three courts does not mean that other courts will not be the subject of case management in accordance with the Procedure Rules. The principal distinction between the pilot areas and the non-pilot areas is that in the pilot areas positive action will be taken to ensure that the PCMH form is used strictly in accordance with its guidance notes by the judge and the advocates for the defence and prosecution. This is in contrast to the non-pilot areas where judges, unless there is agreement between local criminal justice agencies and practitioners to the contrary, will primarily use the PCMH form as a checklist to ensure that all the necessary directions are given.

Hitherto, a lack of case management has contributed to problems across the whole criminal justice system. However, nowhere is this more evident than in the case of heavy fraud and other complex cases. Although these cases only form a small minority of the total number of cases before the Courts, they have been responsible for a succession of cases which have blighted the reputation of the criminal justice system. It is essential that there are brought under proper control. In order to achieve this, considerable effort has again been made by representatives of all the agencies and practitioners engaged in the conduct of these cases. Under judicial leadership – provided in particular by the senior presiding judge Lord Justice Thomas, Mr Justice Hughes and Mr Justice Jackson – a Protocol has been produced which I am about to hand down. The Protocol derives its authority from the eminence of the broad cross-section of individuals who have contributed to its creation and endorsed its contents rather than from it being binding in law, which it is not.

As part of case management, the judiciary can be expected to exercise their discretion in following the guidance contained in the Protocol. The Protocol is designed primarily for jury trials – although many of the principles will be applicable if trials without a jury are permitted under section 43 of the Criminal Justice Act 2003. It will ensure that trials are conducted in a way that will enable juries to retain and assess the evidence which they have heard. The need for this is obvious. If juries cannot do this, a trial will neither be fair to the defence or to the prosecution.

Central to the Protocol is its identification of a consensus that no trial should be permitted to exceed three months or an outer limit of six months, save in exceptional circumstances. With that exception, it is implicit in the Protocol that trials of six months are just not capable of satisfactory disposal. In addition, the roles of the lead advocates of the prosecution and the defence team are clearly identified. Furthermore, wherever practical, there is to be the same judge from the first hearing when directions are given to the conclusion of the trial. The trial date should also be fixed at the first opportunity so that everyone can work to a given date. Other provisions of the Protocol deal with expert evidence and disclosure.

A particularly important feature of the Protocol is the provisions it contains for avoiding applications based on alleged abuse of process becoming themselves an abuse. The Protocol expects those to be normally concluded within an absolute maximum of one day. If a complex trial is conducted in accordance with the spirit of the protocol, it should remain under control.