Examination of Witnesses (Questions 100
- 119)
23 JANUARY 1998
DAME BARBARA
MILLS, QC, and MR
F MARTIN
100. Over 60 per cent?
(Dame Barbara Mills) I think so.
I can supply you with all the detailed figures, Mr Hope, but I
am afraid I do not have them with me.
101. I am afraid we have just done a complete
loop because I have to say that 60 per cent is not much more than
58 per cent and is still leaving 40 per cent up to five days late
or more than five days late.
(Dame Barbara Mills) Mr Hope, I
absolutely agree with you. It is a very real problem. It is a
problem which causes us much anxiety because it reflects our performance
and that is why we are working jointly with the police in joint
performance management. 102. My dilemma was that you described
that relationships had improved, that things had got better since
1990, but I am afraid your answers suggest to me that we cannot
look forward to seeing that graph going up other than by one or
two per cent. I have to say in terms of the impact that it has
on the CPS performance, unless those figures start to hit these
timeliness guidelines of 80 per cent then we are just not looking
at any improvement. I am not confident that with your "should
and we hope it is planned that will get better", we are going
to see anything if you are back here in two years' time other
than it carrying on on the same path.
(Dame Barbara Mills) Mr Hope, all
I can say is I have not been given any better methods of tackling
this. Frankly, going and banging the drum and saying "police
performance is hopeless" does not seem to me a good way of
achieving it. What is being done here is that we are jointly sitting
down, not in committees, let us get this clear, this is the team
leaders talking to the local police officers and saying "we
have got this discontinuance rate" or "we have got these
files all coming in too late, what can we do to improve things?
How can we help you, how can you help us?" That seems to
me to be the sensible way of doing it. I cannot direct the police.
I have no power of direction over the police whatsoever.
103. I would like to see some sort of note
on the best performing police forces [9]
that have been through the process for longer and what kinds of
targets we might expect in future years from each police force
adding up to a graph that hopefully will start to move upwards
rather more rapidly than it appears to be doing at the moment.
(Dame Barbara Mills) Certainly,
Mr Hope. I think I will have to get the police to agree that with
me because it is not just me saying I will do this, it is done
jointly. Will you give me a little time just to come back on that?
104. That will be extremely helpful. Can
I turn to an area where not having been a lawyer I have some degree
of ignorance. Page 71, paragraph 6.20, talks about briefs being
returned late in 75 per cent of cases on the sample looked at.
In a reply you gave earlier to one of the Committee you thought
that might be fee related.
(Dame Barbara Mills) Yes.
105. That briefs were returned because they
were not getting enough cash.
(Dame Barbara Mills) Yes.
106. Is the corollary of that, therefore,
pay the briefs more, the prosecution briefs more?
(Dame Barbara Mills) No.
107. Can you give me the corollary.
(Dame Barbara Mills) The corollary
is that public funding, whether it be paid for the prosecution
or for the defence, should be in equilibrium.
108. And to achieve that?
(Dame Barbara Mills) You have to
speak to the Lord Chancellor's Department because that is Legal
Aid.
109. Okay, thank you. Therefore, you are
not suggesting what could be a never ending spiral of increasing
fees?
(Dame Barbara Mills) Certainly not.
110. That is helpful. Can I then turn to
page 72, paragraph 6.23, and here again forgive me if I am revealing
my newness to this whole field, it talks about ex post facto fees
which only represent two per cent of payments but 33 per cent
of expenditure.
(Dame Barbara Mills) Yes.
111. What are you doing about that?
(Dame Barbara Mills) In case management
plans, which the C&AG has very much welcomed and recommended
to others who have this problem, the difficulty is this: there
are masses and masses and masses of relatively small scale cases
where you can fix a fee in advance and the Bar accepts it and
everyone knows what they are going to get paid. Going to the other
end of the scale there are some very major, huge cases, major
both in importance and in size, where the Bar for a long, long
time said "we cannot estimate how long this is going to take,
we cannot estimate what this is going to cost, so what we are
going to do is discuss it with you afterwards". I do not
suppose you would embark on a very major contract on that basis.
That is what used to happen. Now what happens is we have what
are called case management plans, which we introduced, which means
that we have proper planning in advance. The Bar did not like
it to start with but it is now coming to be accepted. You planned
how long you thought the case was going to be, roughly what you
thought it was going to cost, we all agreed it. We are not stupid,
there are differentials that you build in if something very unexpected
happens, that you are not just caught on the whim of having to
wrangle afterwards about the size of the fee. Personally I think
that this is a very good method of trying to control them. There
are always going to be some very big fees paid for very big cases
but at least we will know where we are and at least it will not
be like saying to an architect "build me a house and send
me the bill afterwards" which is rather what we were doing
up until then.
112. Trying to control through this case
management, how are you going to assess whether that has been
successful?
(Dame Barbara Mills) I think really
to make sure that the fees there are in balance with the rest
of the fees that we pay.
113. So what figure, or indicator, or statistical
indicator might we expect from you to suggest that is being controlled?
(Dame Barbara Mills) I would not
like to say next year it will be x per cent of expenditure because
I have no idea what cases are going to hit us. We are a demand
led organisation. With the weight of the cases getting more and
more substantial, if we get a whole spate of, for example, big
terrorist cases or big drugs cases or something like that, then
our expenditure could go up. What I would like to see is that
when we have estimated in advance on our case management plan
and the case has gone more or less according to that estimate
then we have got it pretty much right.
114. On page 74, figure 30 refers to guidelines
for pre-marked brief fees.
(Dame Barbara Mills) Yes, that is
right.
115. As opposed to ex post facto fees. That
uses a "typical" case, looks at the average fee paid
and shows that in three of the four categories of that kind of
fee the average brief fee exceeded the guidelines.
(Dame Barbara Mills) Yes.
116. It seems to me there you have got a
starting point in that system for controlling costs because you
can start to put down some guidelines and measure against them.
(Dame Barbara Mills) Absolutely.
117. Can you not do the same for ex post
facto fees?
(Dame Barbara Mills) We have a very
small number of these ex post facto fees, as you saw. I think
the better way to tackle it is the way we are doing it at the
moment with case management plans. With these ones, five days,
ten days, ten days to a month, you have got a pretty reasonable
fee. After all, we have 110,000 cases in the Crown Court each
year so we have a pretty good feel for those sorts of cases. As
far as the ex post facto, I think we want to see how these case
management plans work out. I am pleased with them so far. You
might be able to pull them in but I think it is unlikely.
118. I have to say that in the two areas
I have questioned you about, about the times of police files and
the ex post facto fees, you have described processes that you
are hopeful of making improvements in but I have not heard any
tangible targets that I can grasp and say "yes, it has got
better or no, it has not".
(Dame Barbara Mills) I think the
only way you can look at it is in history really and see where
they are this time next year.
119. Yes. My dilemma about that is then
the horses have bolted after the door has been closed.
(Dame Barbara Mills) We do not just
look at things once a year, there is constant monitoring of this.
If I get figures showing that counsel's fees are going abnormally
high in relation to the workload I will do something about it.
Joint performance management the same thing: if I find that, in
fact, at the end of this on the reviews it is going downwards,
although I cannot imagine it will, it has got to get better, it
cannot get worse, one hopes --
9 Note: See Evidence, Appendix 2, page 32 (PAC 238). Back
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