An unprecedented report that exposes an inefficient and judge-centred culture in the Crown Court has been obtained by The Times after a three-year battle with officials determined to suppress it.

The report, obtained under the Freedom of Information Act, highlights inefficiencies arising from the prevailing culture of the time that was based on ensuring that judges were not kept waiting.

It also discloses inflexible sitting patterns, sometimes resulting from judges’ unwillingness to sit in an unpopular Crown Court — (courts are not named but could include Northampton, Woolwich or Birmingham) and inconsistency of approach, with some judges failing actively to manage cases.

Officials at the Ministry of Justice (MoJ) have repeatedly refused to release the draft report, arguing that this would “undermine relations with the judiciary” and resisted its disclosure at every stage of the appeals process.

But Richard Thomas, the Information Commissioner, has now ruled that the MoJ, the department charged with running Whitehall compliance on freedom of information, has itself breached the Act. In an embarrassing finding for the MoJ, he says that officials incorrectly withheld the information, as any potential prejudice that would arise was not sufficient to warrant an exemption from disclosure.

The inquiry into the listing and management of cases was carried out by three government inspectorates (those on the Crown Prosecution Service, the magistrates’ courts service and on the police) in 2003 — a time of heightened sensitivity in relations between judges and ministers after the proposed abolition of the office of Lord Chancellor.

As a result, the report remained under wraps, receiving only a passing mention in a subsequent annual magistrates’ courts’ service inspectorate report.

Why? Judges would have been concerned — particularly at the time of the research — that any inquiry into listing trials, which is jealously guarded as a judicial function, was another encroachment on their independence. Publishing a report on the inquiry findings would not have then been welcome, particularly as the report calls for a review of listing practice in the Crown Court, although it does accept that this is a complex task because of the high proportion of not-guilty pleas (66 per cent of defendants at that time). What the inspectors found was that listing practice varied “considerably from court to court” and the differences arose not just from varying workloads but from factors such as the views of the resident judge on how listing should be done. “Until recently there was a listing culture aimed at achieving timeliness targets and keeping judges busy in court.”

But while timeliness will remain important, it can “no longer be the prime focus for listing”, the report says. Instead, there is now “an over-arching target to reduce ineffective trials” and more emphasis on improving victim and witness satisfaction.

The inspectors also urge “greater flexibility” over the sitting day. “Time estimates for trials are often inaccurate and greater attention should be paid to the accuracy of estimates when setting cases down for trial.”

Then there was the problem of moving judges. The inspectors heard that a newly appointed judge might agree to sit at an unpopular court on condition that he or she will be moved to a “more congenial” court after a couple of years. Some candidates who applied to be judges “refuse appointment until they can have the itinerary they wish”. Nor could judges be compelled to change their itinerary to meet court needs, they say.

A further difficulty was the shortage of judges qualified to take certain kinds of case, such as child abuse, rape or murder, for which special training is needed; and of recorders prepared to sit for longer than a week — presumably because they did not want to spare more time from their practices. As a result, trials could be delayed or courts left empty.

It says that the role of the resident judge in running listing is key, but that role is not defined and there is no “competence framework” to assess the judge given this job, nor is it clear to what extent the resident judge can manage fellow judges. Yet the inspectors accept that running the courts efficiently is made all the harder because of the “long-standing problem” of prisoners not being delivered to court on time.

Other failings include a “culture of late preparation at the Bar” and the high percentage of trials that fail to go ahead because witnesses do not attend or defendants plead guilty at the last minute.

So what do the inspectors conclude? The report calls for a complete review of listing practice in the Crown Court.

The report’s findings are now largely historic. In releasing it, the MoJ emphasises that much of it has been overtaken by a series of reforms to make the Crown Court more efficient and meet any criticisms. But as an object lesson in the delicate constitutional relationship between judges and the executive, it remains as relevant now as then.

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