Many years ago I was interrupted during my cross examination of a police officer over local stop and search criteria. The Chair said ‘I think it’s time to move on’. So I found myself rather provocatively responding ‘Well, with respect, you cannot possibly know that because you do not have the benefit of access to my client’s instructions or my approach to the case’. I carried on. But I was so annoyed that the intervention threw me somewhat off my stride and my rather pompous response introduced an air of conflict between me and the Court which did no good at all for the client. I would have handled the court intervention with more patience and diplomacy now partly due to greater experience but also because the role of the court has recently changed to a more interventionist stance. Nonetheless should there be limits to the Bench ‘descending into the arena’? It is that issue that I hope to address here. The issue that has triggered this piece is the growing number of reports of courts imposing a guillotine upon length of defence cross examination by rigidly holding advocates to time limit estimates provided on the PETs or Case Management (CMH) forms.
There has of course been a major sea change in the way the courts approach trials brought about in particular by the advent of the Criminal Procedure Rules (CrimPR ) back in 2005. The Rules are underpinned by the ‘Overriding Objective’ to deal with cases justly which includes ‘acquitting the innocent and convicting the guilty, dealing with both sides fairly, recognising the ECHR rights of the defendant, respecting the interests of witness, jurors and victims, dealing with cases in an efficient and expeditious manner and dealing with a case in a way that takes into account the gravity of the offence, its complexity, the severity of the consequences for the defendant and the needs of other cases.’ (There are special rules for vulnerable witnesses not addressed here).
This without question has enabled the court to adopt a more interventionist managerial role in the conduct of trials. How should that impact upon the length of time advocates take to cross examine? Are the courts able to interrupt an advocate in ‘full flow’ and abruptly curtail questioning before its natural conclusion by reference to the time limits indicated on the CMH form?
It has long been the position that a court can intervene in any event where the length of cross examination has been excessively lengthy in the courts view. Active case management allows the judiciary to curtail any cross-examination that is deemed unnecessary or repetitious. See case of Butt  EWCA Crim 805 where rejecting a defence appeal Dyson LJ stated that the “management of a trial involves the exercise of judgment and discretion and the court will not interfere with a decision made when the judge is exercising this function.’
Earlier in Chabaan  EWCA 1012 Judge LJ highlighted the importance of dealing with cases expeditiously. He said that “time is not unlimited … the entitlement of a fair trial is not inconsistent with proper judicial control over the use of time … every trial that takes longer than necessary is wasteful of limited resources. The importance of dealing with cases efficiently and effectively is clear.’ This is now underpinned by the CrimPR 2016 rule 1.1 repeating the overriding objective set out above.
So to address the issue in hand. Do these authorities and the CrimPR’s permit the routine curtailment or guillotining of cross examination due to breach of estimated time limits noted on the CMH form? In my view – emphatically not. Firstly at any level of trial there has to be a proportionate and flexible approach to judicial intervention that takes into account the fluidity of trials. Often time estimates can only be approximate because until one sees the witness in person or the direction of travel of other related evidence, such time estimates cannot be an exact almost mathematical or scientific prediction. Instead the court should not be distracted by clock watching but by the nature and quality of the evidence being elicited by cross-examination. Obviously questioning that is repetitive or seemingly not relevant to an issue in question could properly be addressed by a question to the advocate. I would submit this should be done rarely in order to avoid the impression of hostility to one side or the other. The court must appear impartial and unnecessary interventions erode that neutral impression. Excessive or unnecessary intervention can cause a case to become imbalanced in the eyes of participants or spectators and indeed can deny the court access to vital evidence if an advocate sits down flustered and dismayed at having been denied a full opportunity for their questioning to develop.
My own approach to cross examination is to be a brief as possible (this may surprise some!), to treat it as something of a commando raid into enemy territory. Get in. Do what you have to do and get out fast. I have never recently been pulled up for over extending a time estimate and I doubt if I have ever done so. But this may depend upon the nature of the case, documentation, the character and quality of the witness and what else has happened in the case. The very idea of being pinned down or held to a time estimate given (probably by another advocate) many months before and probably prior to service of other evidence is an anathema to me. But does it have any real legal basis or sanctions in any event? (Wasted costs for 5 minutes – Really? Formal complaint? – go on then) I suggest the various Magistrate courts who have recently adopted this policy of guillotining advocates are, with respect, wholly wrong and misguided in their interpretation of the law and the CrimPR’s.
The case R. v Newell (Alan)  EWCA Crim 650 distinguishing Firth v Epping Magistrates’ Court  dealt with the status of defence statements by lawyers on the CMH forms (as they then were referred to). The basic principle established related to the rather different issue of admissibility of admissions on the form. It was held you may recall that where statements were made on the form, which were not made under the section relating to admissions, such statements should be made without the risk that they would be used at trial as statements of the defendant admissible in evidence against the defendant.
To be frank it was a form of Defence lawyer activism that achieved this change in approach from Firth to Newell because the effect of the Firth decision purporting to pin an apparent admission by a lawyer to be used against a defendant resulted in deep caution by the lawyers when completing CMH forms. As Sir John Thomas P. observed the impact of Firth ‘was to make defence lawyers much more cautious about providing information on case management forms, in order to avoid the risk that the contents of the forms might be used against their clients. This is counter-productive, since the forms are intended to assist with case management.’
Many lawyers started to merely complete the part of the CMH form requesting information about the defence case with the word ‘privileged’ for fear of anything else being said that could harm their client in cross-examination by the Crown. It was that lawyer activist resistance that the court was clearly cognisant of in Newell when ruling that unless admissions were made in the section headed under the section relating to admissions they could not be used.
I cannot see that Newell can mean anything other than – unless something appears in the section under ‘admissions’ that the CMH form is merely anything more than an advisory guide and aid to case management to assist in complying with the rules. That must include the section on time estimates for cross-examination of each witness. But those time estimates are simply that. i.e. ‘estimates’ and for Magistrates to pretend otherwise is absurd and amounts to oppressive judicial behaviour towards the defence. They are not binding and defence advocates cannot in law be held exactly to them. That is not a suggestion that defence advocates should ignore time estimates. They should be courteous to the court if pulled up and apologise when explaining it is necessary to take a little while longer than estimated for whatever reason this may be. But courts need to be proportionate in dealing with time ‘estimates’ and not distort the flow of cross-examination nor potentially affect the outcome of a trial by arbitrarily, unreasonably and bureaucratically cutting necessary cross-examination short.
Case ‘management’ should not equate to an overbearing interference. Time is not unlimited but efficient case management should not be fulfilled by potential prejudice to the defendant. Some Magistrates it seems are in some difficulty in ascertaining the boundaries within which they operate. The courts are also subject to the CrimPR’s and these impose burdens upon the courts including ‘dealing with both sides fairly, recognising the ECHR rights of the defendant’. Such as the right to conduct necessary cross examination I would opine.
If some courts continue to behave in the way reported by colleagues, until restrained on appeal, I do predict another outburst of adversarial activism by defence lawyers (Bullying is usually although not exclusively aimed at them) either refusing to give any time estimates or once again writing boldly on the forms something like ‘approximate time estimate only without prejudice to necessity to exceed as appropriate’. I am hopeful that this recent ‘fad’ of Magistrates courts to excessively ‘descend into the arena’ by curtaining cross-examination will dissipate soon as defence lawyers show increased resistance to such unlawful and unwarranted interference in the representation of their clients. No self-respecting and self-disciplined advocate should ever allow Judicial bullying to prevent them from carrying out their duty to represent their client and cross examining for a reasonable time whatever the rough estimate supplied previously. This trend of the court must be resisted and defeated.
Thursday, 20 July 2017