DERBY AND DISTRICT LAW SOCIETY
CRIMINAL COMMITTEE
MINUTES OF MEETING – 19/09/19
Present
Nick Wright, Andy Cash, Dave Gittins, Andy Oldroyd, Simon Stevens (members) Nattelie Mullings from the LAA, Laura Martin from CPS, Nicola Agalanya from the LAA and Glyn Plant from HMCTS.
Apologies
Acting Inspector Wayne Gray apologised at the last minute for operational reasons.
Police Matters
The issue was raised about suspects being interviewed at very, very late and unsociable hours to the detriment of defence lawyers sleep patterns, especially when, unlike police officers, they have to be back in the office the next morning. AC commented that he thought that if case can be resolved, in unsocial hours, then so be it. The suspects liberty might be at stake. AO gave an example of how matters can be dealt with just as efficiently the next morning especially when client is going to be kept for court.
NVW is aware that the police view is to interview if at all possible, even if it is very late evening/early morning.
The issue was raised about cases where a suspect is interviewed about several allegations. And then charged with part of them but bailed back on others, only to be changed later. LM says that this is not good practice from their point of view, which is that everything should be dealt with in court at once.
GP said that he has pointed out to the constabulary that if cases are brought to court late, then it is likely to result in a lesser sentence for the defendant. Also, any delays presenting a domestic violence case in court when a Restraining Order is applied for, and that Restraining Order is less likely to be granted if nothing untoward has happened in the delayed period.
LM explained that because of the problem with the forensic science provider, Eurofins, there have been greater delays in getting forensic results. Simply because there have been less providers and less of a market to provide the service.
SS said that defence lawyers have an issue in finding out from the police what the outcomes of cases are after a suspect/client has been RUI’d. The police often don’t tell us. Officers who fail to reply to defence enquiries by their colleagues who do. All it takes is an email.
NVW pointed out that there are many cases where a client is bailed back to the police station. Nobody will tell us what is going to happen at the bail back appointment and so attendance is necessary. On that attendance, it is discovered that the client has been technically re-bailed or even released under investigation. This is clearly inefficient and a waste of time. NVW agreed to ask the police to remind officers to reply.
Criminal Behaviour Orders
AC said that he understands that there are judicial concerns about ill prepared applications for CBO’s. LM responded that CPS have a process with CBO’s. They are reviewed 14 days before the hearing. Emma Heath-Tillson is the CBO lead at CPS locally. She reviews if there is anything unusual in an application, otherwise, it is by the reviewing lawyer. Mention was made of lots of police officers coming to court for no real purpose when CBO’s are applied for. GP said that proportionality needs to be considered in applications for CBO’s, e.g. if the original offence is of low level, then that would be less likely to indicate such an application is appropriate.
Apparently, Emma Heath-Tillson is to do some training for the relevant officers.
HMCTS Matters
Happily, GP reported that volumes of youth cases are no longer falling.
The Court and CPS have discussed arrests on failure to attend warrants. The police have agreed not to turn anybody away when they are trying to surrender to a warrant. But, if somebody calls them to see if there is a warrant outstanding, they will be told that they can surrender to court. Similarly, the court will always hear applications to withdraw warrants (though they will not necessarily be granted). Such applications are advisable if there are good grounds.
If there are any examples of errors in the above process, GP would like to hear of them, please.
Similarly, national guidance is that local courts should take a fairly lenient view about accepting warrants from foreign courts. E.g. Derby is more likely to accept a defendant on a warrant from, say, Penzance.
HMCTS have less legal advisers current than hereto for. There were 11.2 less legal advisers in Nottinghamshire and Derbyshire than a year ago bearing in mind various clerks leaving for judicial posts and the like. This means there is a possibility of criminal cases being delayed.
By October 2019 there is a plan to have all admin staff in Derby for Derbyshire and Mansfield crime admin will go to Nottingham. But in the long run, all criminal administration will be dealt with centrally somewhere in the region, at least that’s the plan. In the same vein, family public law administration is going to be dealt with from Bennett House in Hanley sometime next year.
Following the retirement of District Judge Devas, a replacement is to be appointed.
In the Crown Court, HHJ Shant has asked that PSR’s not be ordered unless a guilty plea is on a full facts’ basis. Therefore, Magistrates will be guided by us as to whether that is the case.
Pre-sentence reports for sex offenders, youths, death by careless driving and any other offences that defence think causes one to be warranted will be considered unless custody is inevitable in which case, what is the point in a report?
Saturday occasional courts – visiting legal advisers having to come to Derby from all over the Midlands.
Apparently, there are falling numbers of remand prisoners from Chesterfield and Mansfield for unknown reasons.
CPS Matters
LM reports that charging decisions will be made by CPS direct in threshold cases. But is a full code decision is to be made, it will be made by the CPS area lawyers. This should not result in anymore or less delays in matters coming to court.
On the subject of delays, the issue of suspects being released under investigation is being looked at Nationally and concerns have been expressed in many places, not least from national Law Society. The police are now tracking RUI’s. They have lists of cases where somebody has been RUI’d for 180 days or more and they are regularly reviewed. Further, if an alleged offence is more than three months old, the CPS are trying to find out from the police reasons for any delay. It is fair to say that this was an issue of concern for all defence lawyers.
Disclosure
LM says that also work has been done to improve disclosure. Staff in the East Midlands have had training and there has been more proactive management involved. Currently, disclosure training is being done with the police.
LM also stated that IDPC should be sent by their office to known defence solicitors prior to the first hearing. If a defence firm sends a request for IDPC, there is a 20-minute target for it to be replied to.
SS and AC commented that if a request for IDPC is made early and not responded to, we have to chase CPS for it. The original emails appear to be lost.
There were general complaints about CPS failure to disclose any CCTV evidence early. This is an issue, amongst others, about which NVW will raise at a regional meeting in October. GP says that we can ask courts to make a direction for disclosure of CCTV/BWV and such applications are likely to be well-received.
Examples of the process above not being followed are welcomed by LM if anybody would care to send them. Their statistics indicate there is no problem following an examination of it in practice. This contrasts with defence solicitors’’ experiences.
LM did report that a number of rape prosecutions have not dropped in Derbyshire. This is contrary to some indication in the national press. However, it is noted that there have been delays in getting some cases to trial because of the Crown Court taking cases out of the list. A request has been made for better time estimates to be given by the Crown and Defence.
Probation Matters
Some frustration was expressed by AC and DG at the pace of delivery of FDRs at Chesterfield. Delays mean that lawyers have to spend many more hours there than otherwise. GP has given written guidance to benches in what they can and can’t do without a report. That has since been forwarded to NVW who has distributed it to members.
AC mentioned that there is a routine problem with liaison and diversion reports being available for Magistrates but not being disclosed to the defence. It is hoped that that will be corrected by legal advisers.
LAA Matters
There was a change in provider for the DSCC service in August. The LAA apologised for the well-known issues caused by the change over in provider.
AC said that the DSCC website is currently not working very well at all and either doesn’t load or is very slow at doing so. It was noted by all solicitors present that the previous suppliers appeared to function very well indeed. SS pointed that he discerned a gap in the number of cases received in the week of changeover of supplier, therefore questioning where on earth the missing cases had got to?
NM said that for between 26-30 August, if firms didn’t get a DSCC number for a case, then they should simply make a note on the file what the issue was and there should be no problem with payment.
Regarding application for Representation Orders, SS commented that there had been some strange decisions recently on both interests of justice and means tests on applications for some of his clients. That has been an issue that does occur regularly.
An issue was raised about the LAA portal showing that a Representation Order had been granted, but the LAA not actually sending out Representation Orders. This can cause problems in some Crown Courts where without the actual order, firms are not allowed to access a file on the BCM. NM reported that this has been caused by an IT issue and is simply a backlog.
GPS Tagging
This is due to become operational in Derbyshire on 30th September and is effectively location monitoring. GP agreed to send information to NVW. That has now been done and the information distributed to members.
Any Other Business
The question was raised as to whether Section 36/38 appointments for cross examination on behalf of the court are to be done by rota of solicitors prepared to act in such cases – or the solicitor being appointed in court. It works in different at Derby and Chesterfield. The answer is that it should be by rota.
Next Meeting
5th December 2019 at 3pm at Derby Magistrates Court with many thanks to GP and HMCTS for the use of their room.
News from The East Midlands Criminal Justice Board is as follows: –
In Leicestershire and Nottinghamshire there is going to be a strong focus on tackling serious youth and knife crime case.
It is also well-known following media activity that the number of Crown Court sitting days has been reduced for this current year e.g. in Leicester by about 20%, the equivalent of one court. Therefore, it will be of no surprise that the backlog of cases has gone up. And in line with current trends, it is not simply the volume but also the complexity that has increased.
Bail issues – regional management guidance n the management of pre-charge bail and RUI has been issued. There is a focus at an earlier stage on the risk//vulnerability of anybody involved which would indicate that a suspect should be bailed as opposed to being RUI’d. National guidance has been going about the cycle of supervisors’ reviews of bail backs and RUI’s. In most forces the proportion of most bail cases is now 18%.
If anybody has any issues to be raised at either the Derbyshire or East Midlands Criminal Justice Boards then they are welcome to contact Nick Wright to see what can be done. This is particularly relevant in connection with the effectiveness and efficiency matters. Efforts will be made, where appropriate, to get other organisations in the criminal justice system to assist.