Pre-Trial Reviews in the Magistrates' Courts

Centre for Criminal Justice Studies, University of Leeds, Leeds, 1993

78 Pages Posted: 8 May 2018  

Aogan Mulcahy

University College Dublin (UCD) - Department of Sociology

Ian Brownlee

Unaffiliated Authors - Independent

Clive Walker

University of Leeds - Centre for Criminal Justice Studies (CCJS)

Date Written: 1993

Abstract

This report describes the operation of pre-trial reviews ("PTRs") in the Magistrates' Courts in Bradford and in Leeds. It evaluates the impact that the use of PTRs has had on the speed with which criminal cases are processed through those courts, and indicates the extent to which additional costs are incurred by operating such a system. In particular, the report measures the extent to which the use of PTRs in the two courts has promoted the settlement without a contested trial of cases in which a not-guilty plea was originally intimated, and the extent to which cases not settled have been stream-lined at the PTR. The provision of this information is designed to facilitate a cost-benefit analysis of PTRs as they might be applied more generally in Magistrates' Courts. The report begins with a short history of the previous experience of preparatory hearings in the lower courts. This review indicates that enthusiasm for such procedures has fluctuated in the decade and a half since they were first used, but that despite disenchantment among some of the earliest users, interest in some sort of PTR system continues to grow. The results of a national survey carried out as part of the present research, (and contained in chapter five of this report) show that as many as 30% of all courts already operate some sort of PTR system, with a further 8% considering introducing one. In chapter two the workings of the PTR systems in Bradford and Leeds are described and contrasted. Both operate a "live" system, in the sense that the defendant is usually present within the court precincts so that settlements which are reached in the course of PTR may be implemented on that day without further adjournment. In Bradford a senior or experienced court clerk presides over PTRs in a small anteroom. Cases are "blocklisted" for PTR on two afternoons of the week, and approximately ten cases are dealt with at each session. The defendant is not present in the room during discussions of the case unless he or she is unrepresented. PTRs in Leeds are held in open court during a normal crime before a bench. They are dealt with as they arise in the list but many fewer cases are, in fact, listed for PTR in Leeds. The defendant is physically present in about three quarters of the cases, but rarely takes an active part in proceedings. The dynamics of the more elaborate system observed in Bradford are described in detail and instances are given of discussions between the parties, sometimes at the prompting of and involving the clerk. We characterise the atmosphere as "semi-informality" and note the shared goal of case-settlement that seems to pervade most PTRs. In neither court can cases adjourned to PTRs be said to be distinguishable objectively in terms of their complexity or seriousness from those which are not so adjourned. Chapter three discusses the data on this issue and records that cases for PTR were being chosen principally on the basis of trial-length estimate in Bradford and on the (related) characteristic of number of anticipated witnesses in Leeds. Neither feature in isolation seemed to have successfully targeted PTR use on the most complex cases. We conclude that using a matrix of indicators rather than any single feature seems to be the most profitable approach to selection on the basis of complexity. As for the outcome and effects of PTRs, the main benefit in Bradford and Leeds, (as chapter four reveals) seemed to be the encouragement of case settlement. Both defence and prosecution were equally likely to make concessions and somewhere between 16 and 21% of cases referred to PTR settled there. By contrast, the impact of PTRs on cases which did proceed thereafter was more difficult to discern, irrespective of offence category. On average, PTR cases took marginally longer to dispose of from first appearance to final hearing. Any streamlining of cases, e.g. by resolving issues or dispensing with witnesses was far from evident, and later trials were just as likely to be adjourned or settled at a late stage as those where no PTR had been conducted. There was, however, some indication that holding a PTR was associated with a greater amount of notice being given in advance of trials that collapsed. While these efficiency gains may be modest, the same is true of the costs, with most PTR hearings lasting on average only five or six minutes. The report concludes by suggesting in chapter six that the decision on whether to introduce a PTR system should be taken locally rather than being imposed on all courts. The proper functioning of such a system depends on the existence of good-will and co-operation among court users and it seems to us that a flexible model, attuned to local court needs, would better secure these attributes than would statutory regulation. Gains from PTRs are likely to be real, but limited in scope, and to be associated with a tendency towards lengthening in the generality of case disposal times. Individual justices• clerks will be in the best position to decide whether, in the particular circumstances of their caseloads, the gains will outweigh the disadvantage of slowing case throughput, albeit marginally. Where it is thought advantageous to incorporate a PTR system into case progression, we recommend that the fullest possible use is made of advance disclosure before every PTR, since this seems to us the bedrock of the system. Complexity, rather than seriousness should be the key factor in determining whether a case is adjourned to PTR, and complexity 1s best determined on a matrix of factors such as estimated trial length, number of likely witnesses, multiplicity of charges or defendants, difficulty of legal issues and so forth, rather than on one single criterion. We also recommend that trial dates should be listed at the same time as the cases is adjourned to a PTR to provide a sort of "back-stop" against unnecessary prolongation of the proceedings. PTRs are likely to involve legal, procedural and administrative decisions and are therefore best dealt with by court clerks who should be as experienced as possible. It should be the expectation that advocates who attend the PTR will have had care and control of the case file throughout and they should have full instructions, particularly in relation to witness availability. Finally, we were persuaded by those legal professions to whom we spoke that PTRs were more likely to be effective, particularly in relation to case settlement, if the defendant took no active part in the hearing or, a fortiori, was absent from the discussions altogether. Despite personal misgivings about this from a substantive justice point of view, we report it as a finding of the research. We do recommend, however, that the defendant should invariably be in the court precincts during a PTR, answering bail if necessary, to ensure that renewed instructions can be taken and negotiated case settlements be put into effect without further adjournment.

Keywords: Criminal Process, Magistrates Courts

JEL Classification: K10, K14, K33, K19, K30, K33, K42, N40

Suggested Citation

Mulcahy, Aogan and Brownlee, Ian and Walker, Clive, Pre-Trial Reviews in the Magistrates' Courts (1993). Centre for Criminal Justice Studies, University of Leeds, Leeds, 1993. Available at SSRN: https://ssrn.com/abstract=3154789

Aogan Mulcahy

University College Dublin (UCD) - Department of Sociology ( email )

Belfield
Room F306X
Dublin 4
Ireland
706 8234 (Phone)

Ian Brownlee

Unaffiliated Authors - Independent

No Address Available

Clive Walker (Contact Author)

University of Leeds - Centre for Criminal Justice Studies (CCJS) ( email )

Leeds LS2 9JT
United Kingdom
44 (0) 113 3435022 (Phone)
44 (0) 113 3435056 (Fax)

HOME PAGE: http://www.law.leeds.ac.uk/people/staff/walker/

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