R (Sullivan) v The Crown Court at Maidstone

The Government imposes targets on the Courts that are not necessarily in keeping with the independence of the Judiciary. It is the imposition of these targets coupled with the role of the resident judge at each crown court centre that encourages the judge in any case to control its progress by making various orders for compliance by both the prosecution and the defence.

Very often the purpose of the orders is to enforce disclosure of information both ways with a view to reducing the areas of dispute. Such is the modern way of dealing with the ‘administration’ of justice. The main beneficiaries of this process will be the prosecution and the administration of the court centre. This is because the general rule is that the defence does not have to give any information the prosecution unless it chooses to do so. There are some exceptions to this rule but these are carefully documented.

Care needs to be taken to ensure that the judge does not overstep the mark when making orders for the defence the defence to release information.

The CPIA introduced a system of defence statements. In a crown court trial it is usually considered to be necessary to serve and lodge a defence statement. In a number of Fraud trials the judge will order a defence statement to be served albeit under different legislation. There will remain some limited situations where it remains a good decision not to serve this document. The definition of a defence statement is clearly set out in the Act.

What occurred is that a number of resident judges gave local practice directions, as well as specific orders in cases, that the defence statement served pursuant to the CPIA needed to be signed by the defendant. The Act did not require this and we continued to advise clients that they were not required to sign the document.

There were excellent reasons in the case of Sullivan to refuse to sign the defence statement.

The case had to be taken to the Administrative Court for an order that the defence statement did not need to be signed. Any local practice direction in conflict with that was unlawful. A large number of crown court’s had to withdraw practice directions as a consequence of the ruling.

The case was really about the way in which some judges could fall into the trap of ordering steps to be taken simply because they were seen as useful in the administration of the case. In fact the power of the judge to make orders is limited. Those limits have to be adhered to or the order is unlawful.

There are other areas that fall into this trap, notably expert statements. It is generally thought that a defence expert report must be served on the crown and the court if the defence wish to rely on that expert evidence. This is not so and rarely should the defence be prepared to do serve a whole report. The report will often include some material that will either give away some instructions from the client or a witness, or will give to the prosecutor information to allow a good guess to be taken as to the tactics that the defence will employ at trial.

Practitioners simply need to be alert to the fact that a crown court judge must act within the powers that have been entrusted to him and not beyond.