Thursday, 7 March 2013

Efficient and Expeditious? Sometimes it pays to 'think twice'

The drive for increased efficiency and speed in criminal proceedings has been high on the agenda for many years. Those in favour (the Government, the judiciary) argue that the promotion of this culture provides better value for money for the public and focuses proceedings on the 'real issues' (as the Criminal Procedure Rules term them).

Those who question this eternal quest for a shorter and cheaper process argue that quicker isn't necessarily better. Issues or evidence that matter can be missed. Procedures designed to safeguard rights can be truncated. What the 'real issues' are depends on who you ask. And the constant pressure for more efficiency can lead to unfair trials, subsequent appeals and more cost. Not so efficient after all.

A good example is the recent case of J (A Child) [2012] EWCA Civ 1231. Although a family case, the matter at hand was demonstrative of a danger applicable to criminal cases. The case involved a dispute between a separated mother and father over shared custody of their son. Sadly, the litigation relating to the case had dragged on for nearly a decade. The mother, a difficult woman who's 'personality characteristics . . . were putting [the child] substantially at risk' had broken off agreed custody arrangements with the father on several occasions.

Having sole custody, the mother had consented to allow periodic, temporary custody for the father. But, every few months, she would renege on the agreement, disrupting the child's contact with the father. The mother failed to provide any clear reasons as to why she repeatedly terminated the arrangements. As such, joint custody on an equal basis was imposed in order to  establish a 'balance of power'.

Once again, the mother disrupted the arrangements by seeking sole custody of the child. Subsequently, the father made a similar application. The matter therefore came to the County Court before Recorder Bryan. The matter was resolved in favour of the mother and the father appealed. His grounds underline the points raised earlier in this post.

The major issue, he argued, was that the Recorder - seemingly due to a desire to get through proceedings swiftly and focus on the 'real issues' - had unfairly limited his Counsel's ability to put his case. The father's lawyer had wished to cross-examine the mother on why she had repeatedly changed her stance on the father's level of contact. When the lawyer attempted to do this, the Recorder intervened, saying to the mother:

'Do not answer the question . . . I do not see where it is going'

The Recorder did not see the value in 'rak[ing] over all [the mother's] earlier concerns and worries'. The lawyer explained that because the mother repeatedly disrupted contact, she wished to 'get to the bottom of what the problems are', in order to finally and definitively resolve the matter. She suggested it would avoid a situation where the mother might disrupt the arrangements again (as in the past) and 'two months down the line . . . we come back to Court again and we're back to . . . square one'.

These appear to not only be very cogent arguments, but go beyond favouring her client - they promote effciency. Yet, the Recorder stated that 'the Court . . . will want to move forward rather than linger'. The lawyer countered that this would allow the mother to 'dictate' future arrangements and that it had 'never [been] established why the previous arrangements were wrong'.

The Recorder dismissed her persistence, stating she was 'not going to gain any mileage from this line of cross-examination'. The lawyer attempted to proceed but was actively curtailed by the Recorder. The lawyer argued that this 'hamper[ed] my ability to be able to put my client's case'. The Recorder curtly responded that 'we are where we are'.

This exchange is a good example of the dangers of rushed procedure, driven by a desire to be speedy and efficient. The lawyer's point - that a pattern could be identified in the mother's conduct and examining it could help resolve future issues - was dismissed with little or no consideration because of the desire to 'move forward'.

Rightly, the father's appeal was allowed. Munby LJ felt that the issues raised 'cried out' for investigation. He considered the line of enquiry substantial and justified. Defence lawyers are often criticised for pursuing spurious points in the vain hope of raising any defence. Case management in the name of efficiency is often lauded for discouraging this behaviour. Yet, in complete contrast, Munby LJ dismissed any notion that the lawyer was attempting a 'Micawber-like' cross-examination in the 'speculative hope . . . that something might turn up.'

He made a point of underlining that 'a judge should stop irrelevant or time-wasting cross-examination'. However, he suggested that 'counsel is likely to have a better grasp of the inner forensic realities of the case [than the judge]'. This provides a good basis for criticising the long-running transfer of power away from the parties to the judiciary.

Judicial case management essentially adopts a top-down approach, with parties expected to comply with the expectations of the bench. Alongside the argument that the parties in an adversarial system should be able to run their own case, Munby LJ's rationale provides a good reason for judges to 'think twice' before dismissing a lawyer's line of investigation as time-wasting.

Munby LJ commended the father's lawyer, highlighting meritorious conduct that should also be considered good criminal defence practice. He congratulated her for 'doing her duty, politely but firmly standing her ground and telling the Recorder plainly that his ruling was preventing her putting her client's case.'

This clearly demonstrates the type of fearless and persistent zealous advocacy that criminal defence clients should be provided with. A lawyer willing to incur the ire of a judge or the opponent, in order to logically and robustly present the client's case. Munby LJ concluded that it was 'a pity' that the Recorder stifled such behaviour by refusing to 'change his mind'.

J (A Child) is an excellent demonstration of both good defence work and bad judicial case management. It highlights the danger that single-minded devotion to an efficient, speedy, forward-moving process can present and the necessary battles that effective lawyers need to engage in.

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