Yesterday, the first part of the Leveson Review was published. We have previously provided our views on the Leveson Review shortly after its announcement: The Leveson Review of Criminal Courts

Sir Brian Leveson, the former President of the Queen’s Bench Division and Head of Criminal Justice for England and Wales, was tasked by the Lord Chancellor, Shabana Mahmood, to conduct an independent review and make recommendations for reforming the criminal justice system from charge through to conviction or acquittal.  His Executive Summary lays bare the scale of the challenge in the starkest terms: “Criminal justice is in crisis… the scale of the problem requires a solution of equal magnitude…  financial investment on its own without systemic reform, cannot solve this crisis…  The system is too broken.  A radical and essential package of measures is therefore required to prevent total collapse.”

The report makes a large number of recommendations, grouped into nine chapters.  Here we focus on four of the major reforms.

Restriction on the right to trial by jury

Perhaps the most radical, and the most heavily foreshadowed, are the proposals to limit trial by jury, which is the slowest and costliest but, crucially, arguably the fairest system for determining guilty or innocence.  Sir Brian seeks to do this in three ways:

First, he proposes that the right to a jury trial is removed for all ‘either way offences’, which a defendant could previously choose to have tried before a jury, which would instead be heard in a new division of the Crown Court by two magistrates and a Crown Court judge.  There would be a presumption that any offence likely to attract less than three years in custody would allocated to the new division.

Second, Sir Brian proposes the reclassification of certain offences, which previously could be tried in the Crown Court, as summary only offences triable only in the Magistrates’ Court.  The full list of offences to be reclassified includes racially aggravated assault, possession of Class B drugs, exposure and voyeurism and theft from vehicles.

Finally, he suggests that defendants should have the option of trial by judge alone, and that all serious and complex fraud cases (which are invariably the longest, most complicated, expensive and delayed trials in the system) should always be tried by judges alone.  This would apply to any case involving “hidden dishonesty or complexity that is outside the understanding of the general public.”

These are controversial proposals. It is correct to acknowledge that with the Crown Court backlog at record levels (c. 77,000 pending cases) and Crown Court trials being listed as far ahead as 2029, radical solutions are needed. It is also true that extra money alone is not the answer, although the report makes clear that “long-term constraints and reductions in funding and investment in criminal justice over many years have resulted in fewer available courts, a considerable maintenance backlog in the court estate and a smaller and less experienced workforce.”  However, if jury trials are the “gold standard” in procedural fairness, decisions as to which offences lie either side of the boundary need to be made with great care, and cannot be justified by efficiency alone. Moreover, being judged by twelve members of the public is profoundly democratic, representing diversity of thought, view and experience, whilst the same cannot always be said for the judiciary.

The considerations for serious and complex fraud trials are different, where the need to explain often arcane and esoteric concepts to a jury can hinder rather than help achieve a just outcome.  Much will depend on which cases are judged to be “outside the understanding of the general public” to justify trial by judge alone, and whether the first few cases dealt with under the new system are, in fact, dealt with more efficiently. 

One consequence of these reforms would be the delivery of a judgment at the end of the trial explaining the judge’s verdict, even in the event of an acquittal, which juries are never required to do.  This will provide much greater transparency for victims, witnesses, prosecutors and the public.

Earlier Guilty Pleas

Less radical but no less consequential are Sir Brian’s proposals to reduce the number of trials by encouraging earlier guilty pleas, continuing a trend over the last 30 years to incentive defendants to plead guilty earlier, thereby avoiding unnecessary trials and costs, and freeing up court time.  Sir Brian acknowledges that over-generous sentencing discounts can become coercive, pressurising defendants to plead guilty.  Therefore, quite rightly, his explicit aim is not to increase the number of people who plead guilty “but to focus on that pool of defendants who will plead guilty at some stage, and to ask what measures might be introduced to ensure that they plead guilty as early in the process as possible”.  This is a delicate balance to strike. Sir Brian’s key proposals are:

 1. Goodyear directions (i.e. telling someone what the likely sentence for a guilty plea at that stage) as the default at the Plea and Trial Preparation Hearing (PTPH);

 2. Raising the maximum discount for a guilty plea at the earliest opportunity from one-third to 40%, with a less steep drop off thereafter and more discretion to award higher discounts even for late pleas; and 

 3. Delaying PTPH’s to allow for “meaningful engagement” between prosecution and defence on acceptable pleas.

Meaningful engagement from the prosecution will be supported by all defence practitioners but it depends on the CPS actually serving papers in good time, in compliance with the Better Case Management Revival Handbook; and a prosecutor with knowledge of the case and the power to make decisions actually being willing to have meaningful discussions with the defence about the strengths and weaknesses of the case. In our experience, neither of these things tend to be particularly forthcoming, and may require substantial financial investment into the system. There are also fundamental issues about how Sir Brian’s proposals will deal with the current position arising from the Court of Appeal’s decision in Plaku which, in essence, limits the availability of the maximum discount at the first appearance only, which is before Sir Brian envisages that the court will give it’s Goodyear indication of the likely sentence.  This appears to be counter intuitive, as it would be perverse for the defendant to lose some of their discount in order to hear from the judge what their sentence might be.

Scrapping ‘Released under Investigation’ (RUI)

Releasing suspects under investigation rather than on bail became common following the reforms in the Policing and Crime Act 2017 to limit the period for which a suspect could remain on bail before being charged.  Rather than comply with the legal and procedural burdens to justify keeping a suspect on bail, including the obligation to show that the investigation was being conducted expeditiously, it was easier for the police simply to release them without any conditions or time-limits on the police investigation.  However, RUI would often leave suspects in a position of limbo, not knowing what was going on with their case, which potentially was simply sitting in a pile on an overworked and under supported police officers’ case load. There are examples where, even after proactively chasing the police, suspects were informed months after their file was closed that no charges were being brought. The law was amended in 2022 to introduce a presumption in favour of police bail, but Sir Brian proposes going further and scrapping RUI altogether so that “the only mechanism for releasing a suspect from the police station while an investigation continues should be bail…” This will certainly improve procedural safeguards for suspects but, without additional police resources, it may do nothing to actually bring about expeditious investigations, which is the objective Sir Brian wishes to achieve.  However, police funding is outside Sir Brian’s remit, so he should be applauded for wagging this tail in the hope that the dog will follow.  

The use of artificial intelligence

Sir Brian foreshadows the potential benefits of new technology and AI, but it appears we will need to wait for Part II (the Efficiency Review) to add meat to the bone. As he acknowledges we can’t even conceptualise the form of the digital world in 10 years’ time:  “The pace of change in technology is such that, within ten years, the landscape within which any criminal justice system will operate is beyond our ability to visualise”.

Whilst AI undoubtedly has a role in dealing with the exponential growth of digital material in serious fraud and cybercrime cases, Sir Brian also highlights that the growth in technology is part of the problem, not just the solution, as even apparently straightforward cases require the analysis of data stored on everyday devices, often supplemented by expert evidence, contributing to delays.   Therefore, AI (like resources) is not a panacea to the problems facing the criminal justice system.

Some areas are highlighted, though, as low-hanging fruit, including using technology to facilitate Out Of Court Resolutions (OOCRs) and the use of AI in facilitating transcripts of Magistrate Court trial and sentencing proceedings. Sir Brian also urges the training by the Judicial college to cover technology which may be new to Magistrates and to help accessibility to the digital world.