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Criminal Justice Changes: Incentives


What is the general proposal?

To promote lawyers’ and defendants’ compliance with procedural obligations.

Why change the law?

Parties are often not well prepared for court appearances and there is little to encourage parties to make progress on their cases out of court. The current system has few consequences for either the prosecution or the defence if they continually or unreasonably fail to do what is required of them or needlessly prolong proceedings.

It is not anticipated that judges will use available sanctions very often (particularly the more severe ones). However, their availability will encourage compliance and help develop a culture change.


Case management

Prosecutor and defence counsel will have a duty to comply with the case management system (in court rules and regulations), unless the court orders otherwise in the interests of justice.

Bail conditions

The court or registrar will be able to impose bail conditions on a defendant to ensure he or she takes steps necessary for the timely progression of their case. These would be such reasonable conditions as:

Applying for legal aid.

Engaging or instructing counsel.

Attending for the preparation of probation reports or other reports (eg, alcohol and drug assessments).If the defendant breaches these conditions, the court will be able to:

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Reconsider bail.

Vary bail (eg, if the defendant had a good excuse for not meeting the bail condition).

Place the defendant in custody (only in the most extreme cases, most likely involving a repeated breach).


When sentencing or otherwise dealing with an offender, the court will be required to take into account:

As aggravating factors: an offender’s repeated and/or unreasonable noncompliance with procedural requirements (eg, a repeated unreasonable refusal to meet with counsel for case management discussions).

As mitigating factors:

o Any delay in the case because the prosecution has repeatedly and/or without good excuse not complied with procedural requirements.

o Positive steps taken by the offender (over and above mere compliance) to expedite or avoid undue costs in their case (eg, making a large number of admissions of facts early in the case, reducing the number of disputed facts to be dealt with during the case).

Costs orders

The court will be able to order the defendant, defence counsel, or the prosecution to pay costs, if satisfied that the person has not complied with a criminal procedural requirement and does not have a good excuse (eg, failing to file a case management memorandum). This builds on the current limited provision for costs to be imposed in criminal cases under the Costs in Criminal Cases Act 1967 and provides an explicit statutory authority for the courts' ability to order costs for this purpose.

Greater use of existing processes

Legal aid: Improvements to legal aid services (following Dame Margaret Bazley’s review) are expected to impact on the timeliness and efficiency of criminal processes more generally. In particular, improvements are expected as a result of new quality assurance standards, flexible purchasing arrangements, and tighter administration of legal aid funding. This will provide an opportunity to design a system that has greater incentives for promoting improved compliance with criminal procedure obligations.

Professional standards and discipline: Making greater use of current processes that monitor and enforce the professional standards of counsel, in particular those under the Lawyers and Conveyancers Act 2006, and those administered by the Legal Services Agency in relation to legal aid providers.


To support greater use of existing processes:

The Ministry of Justice will establish systems for the courts’ administration to capture information about parties’ compliance with procedural requirements.

Court registrars will be able to generate reports on compliance rates for different participants in criminal proceedings. These will be able to be provided to relevant authorities (eg, the Law Society, Legal Services Agency, the Solicitor-General and the Police).

International Comparisons

The United Kingdom and the Australian states make varying use of the specific mechanisms identified above, including costs orders.1 Most jurisdictions also focus on the potential of the legal aid and disciplinary frameworks to provide incentives for
promoting compliance with criminal procedure obligations. In England and Wales, reform of the legal aid system (including changes to the structure of legal aid payments, the delivery of legal aid services, and measures to ensure the quality of legal aid providers) is proceeding in tandem with reforms to the criminal process.

1 See, for example, the Criminal Procedure and Investigation Act 1996 and the Prosecution of Offences Act 1985 (United Kingdom); the Criminal Procedure Act 2009 (Victoria); and the Criminal Procedure Act 1986 and the Costs in Criminal Cases Act 1967 (New South Wales).

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