Family and Criminal process and remedies:collision course or sensible overlap? - Summary and Observations by Mr Justice Hedley

Thursday, 08 October 2009 09:00

At the Western Circuit Conference of HMCS - co-hosted by the Peninsula Family Justice Council, delgates attended breakout groups, and provided feedback to Mr Justice Hedley.

A full summary of that feedback can be found here.

Observations by Mr Justice Hedley have been copied below:

Summary and Observations by Mr Justice Hedley

A strong theme arising from the responses above is the necessity to identify 
cases of parallel proceedings. Suggestions as to how to address the 
communication problem include the appointment of joint case progression 
officers, a Crown Court CPS liaison officer and software systems to identify 
where there are more than 1 set of relevant proceedings.

My experience is that there is probably no single common system which would 
work in every location as the requirements of different localities may demand a 
different approach. However those with authority in each area could take the 
lead to coordinate action.

The thrust of the issue about the joint management of multi-jurisdiction 
proceedings is how are we to get it going? Possibly some guidance from the
centre would be needed but the case of Levey is already sufficient judicial authority to encourage those in charge of the local family and criminal systems to liaise

In my experience such liaison works best when the relevant judges take the 
initiative to set such arrangements up. There are judges who hold tickets in both 
jurisdictions who could set up a joint management process.  Probably the 
hearing would take place in the Crown Court but it could take place in either 
court. It is not difficult in practice to get everyone into court at the same time. The 
Judge would need to make it clear what he/she wants to achieve / find out at the 
hearing. Any Judge taking responsibility for case management of such 
proceedings ought to check the position with the Presiding Judge of the Circuit.

One of the issues from the responses was as to how far such joint case 
management could go, whether it would be restricted to case management itself 
or the respective trials. It is my view that the criminal case ought to be decided 
first, and that such co-management would need the consent of all parties, which 
in my experience is normally forthcoming. It may also be necessary to invoke 
QBD jurisdiction where there are disclosure issues. What is important however 
is the willingness to give this a go.

The question arose as to what should happen if there is no jointly ticketed 
judge. One suggestion is for the two judges to sit together, another possibility 
would be for there to be consecutive hearings with some judicial liaison, 
possibly called a “Dartington hearing”.

There is a very sensible suggestion that family lawyers ought to know how 
linked criminal cases work and vice versa.

A suggestion was made about the abolition of the criminal enforcement of 
breaches of non molestation injunctions. We have a committee actively looking 
at this issue. We have heard from the ACC of Devon & Cornwall police that they 
are able to use containing measures rather than prosecution in every case, but 
the difficulty about this is that such methods are invisible in statistical terms, and 
cannot be measured. If such a change to reverse the move to make breach of 
such an order a criminal offence then there would have to be a political 
initiative.

There is a suggestion that all perpetrators should be legally represented, as 
happens in New York.

The Family – Criminal Committee is working on a number of matters including 
Findings of Fact in domestic violence proceedings.

I hope that there will be practical local initiatives to make the present systems 
work, and that local practitioners and judiciary will take steps to acquaint 
themselves with their local developments and what is happening in related 
cases.