Examination of Witnesses (Questions 1-19)
MR DAVID
CALVERT-SMITH
QC, MR RICHARD
FOSTER AND
MR STEVE
PRZYBYLSKI
TUESDAY 26 FEBRUARY 2002
Chairman
1. Mr Calvert-Smith, welcome. I believe this
is the second time you have given evidence to this Committee.
(Mr Calvert-Smith) It is.
Chairman: I was not in the Chair last
time. As you probably know, this is one of a series of occasional
evidence sessions we do with witnesses whose work comes within
the scope of our Committee. We are going to start, if we may,
by asking you about some of the Auld recommendations.
Angela Watkinson
2. Good morning. Sir Robin Auld's recommendation
is that the CPS should have a greater role in the charging of
suspects. I would like to ask you, first of all, if you support
that idea and, if you do, how much staff and resources would be
likely to be needed to put that into place? What sort of effect
do you think it would have on your working relationship with the
police?
(Mr Calvert-Smith) Broadly speaking, we support the
idea that the Prosecution Service should run the prosecution from
beginning to end. Therefore, we are broadly in favour of what
has actually been happening gradually over the three years that
I have been in the post, which is closer working relationships
and earlier relationships back to the time of charging with the
police, so that as a team we get the charge right first time.
It seems to me there are huge advantages to getting the charge
right first time. Clearly, the CPS cannot guarantee to do that
because sometimes the investigations are at a very early stage,
but when one thinks of the raised and then dashed hopes of victims
who hear that the perpetrator of the crime against them has been
charged with X or Y offence only to be told, perhaps, a few weeks
later that actually the evidence does not support the charge;
the damage which is sometimes irreparable to the reputation of
the defendant who is charged and then a month later is cleared,
in the sense that the Crown Prosecution Service decides to drop
the charge, then I think that the advantages of making as sure
as one can that when the charge is brought it is the charge that
is going to survive all the way to court and, if the evidence
is there, to conviction, is worth achieving. We have been working
very, very closely together with the police on this, and have
set up pilot sites to see how it will work in a number of areas
in the country. We must not lose the benefits that have been gained
since the implementation of the Narey provisions which means that
simple, uncontested cases can get to the magistrates' court within
a day or so of the arrest and charge and be dealt with. So we
must not throw any babies out with any bathwater. Provided of
course the defendant has had access to a solicitor and been able
to give proper instructions and enter a proper plea, we do not
want to interfere with that procedure in any way. However, in
any case in which there is some doubt as to what the right charge
should be, or as to whether there should be a charge and, if so,
against whom, then it seems clearly right, both to the police
service and to us, that we should try to work together so as to
get it right first time and avoid the two types of disappointment
I have mentioned. So far as the cost that you asked about is concerned,
clearly any new initiative, even if in the end it saves time and
money, which I believe this would, will cost money to set up in
training costs and new ways of working and the like. It does follow
on the heels of the recommendations of Sir Ian Glidewell in 1997
that the Prosecution and the police work much more as a team and
much less as two wholly different and, sometimes, hostile partners
by the setting up of co-located Criminal Justice Units where the
CPS and police are actually already working together so that this
process should not be too expensive to set up. At the other end
of the scale, because I have been talking so far about what, in
the jargon, we call "volume crime"—run-of-the-mill
crime—there is the very serious crime; the crime that, by
and large, only gets to charge after a long investigation, not
the sort of crime that is committed when the pubs turn out on
a Saturday and somebody has to be dealt with. This is the intelligence-led
policing model, which is attempting to bring serious criminals
to justice. Here again we have a role to play, once again, in
getting the charge right but, perhaps, before that, trying to
ensuring that methods of investigation used are going to survive
the scrutiny of courts in due course, so that vast sums of money
are not wasted on investigations which will not survive the scrutiny
of the courts and will lead to prosecutions being stayed as abuses
of the process. So that there is everything to gain, I think,
to the police, to us and, ultimately, to justice by our being
much closer to the charging process in the sorts of cases I have
mentioned, but not sacrificing any of the gains of the speeded-up
process on the simple pleas of guilty which go straight to the
magistrates' court on the following Monday or Tuesday, whatever
it is.
3. You do not think the CPS is taking over not
only part of the role of the police but, also, of juries as well
in examining evidence before cases come to court and almost pre-determining
the outcome?
(Mr Calvert-Smith) Well, so far as taking over police
powers is concerned, in the end it is the Prosecution who Parliament
has decreed decides what charges go to court. That is the current
position. So that when we get to court it is the CPS, or Customs
or whoever are prosecuting, who actually decides what the charge
is that the court is going to determine. The only question is
at what stage does the CPS decide that? Is it after the police
have made an initial decision, which is often right but in a very
large number of cases is wrong, as the Inspectorate is constantly
telling us, and so the changes have to be made, or is it more
sensible for the decision, which is ultimately that of the prosecuting
authority, to be taken early so that it is more likely to be right,
and saves all the expectations and disappointments which are caused
by getting it wrong? So far as usurping the function of the jury
is concerned, of course, once again, the remit of a statutorily
created prosecution service is to act as some kind of filter so
that unmeritorious cases, cases which are more likely than not
to end in the acquittal of the accused, are, so far as possible,
not taken to court, in whatever order of priority one likes to
put it: innocent people have the anxiety of waiting for months
until their name is cleared, as do their families, witnesses are
not unnecessarily put through the mill, as it were, of cross-examination
and so on, and waiting unnecessarily, and a great deal of public
money is wasted. So that one of our functions is to try and apply
a filter to cases but, also—and this is terribly important—to
add value to cases. We see the earlier involvement of the CPS
not just in the historically known way of stopping cases which
should not get to court but suggesting to the police at an early
stage (and domestic violence is but one example) that there are
other avenues which they may like to follow which might lead to
a successful conviction whereas now they do not. So we are hoping
to add value to prosecutions so that they can be brought, as well
as saying at an early stage, "This one is going nowhere,
stop it". So that, to answer your question, I suppose one
of the functions of the Prosecution Service is, in a sense, to
prevent cases getting to juries which should not. So that, in
a sense, we are usurping the jury's function, yes.
4. Sir Robin Auld's system calls for advance
indication of sentence to replace the current system of plea bargaining.
What is your view?
(Mr Calvert-Smith) This is slightly outside my department's
remit, in that traditionally, with limited exceptions, the Prosecution
plays no part in the sentencing process. Currently, if an approach
is made of any kind on sentence, we take no part in any discussions
that there may be. However, there are clearly advantages in making
sure that any discussions that do take place concerning sentence
which may shorten the proceedings take place openly and in a transparent
way, so that everybody—defendant and victim—involved
in the case can see what is going on. I do not think I can be
any more committal than that. It is not really part of our role.
5. Sir Charles Pollard, Chief Constable of Thames
Valley, has said publicly that "the courtroom has become
. . . the place for legal games to be played by lawyers".
Do you agree with the view that the trial system is arcane and
riddled with red tape?
(Mr Calvert-Smith) We have put in responses (supportive
responses, it has to be said) to two recent Law Commission papers
on hearsay evidence and on a limited change to the law which prevents
previous convictions being admissible in evidence. So to that
extent, and to the extent that Sir Charles was thinking of hearsay
and previous evidence of bad character as part of this arcane
game, we do support the changes which the Law Commission has recommended
and which Sir Robin Auld has hinted at. Clearly, there must be
rules, which may seem to outsiders to be arcane, to prevent overly
prejudicial evidence being introduced. It is one of the prices
that, I suspect, we must pay for the continuation of jury trial.
So that, to a limited extent, I support Sir Charles, and the particular
recommendations he made following that general remark are recommendations
which we have supported.
Angela Watkinson: Perhaps I should address
my next question to Richard Foster.
Chairman: Mr Foster, I am sorry, I did
not welcome you at the beginning.
Angela Watkinson
6. Will you meet the target for establishing
a further 56 Criminal Justice Units by March 2002, which is nearly
on us? Are they likely to be replaced by criminal justice centres
such as the one planned for Warwickshire?
(Mr Foster) I hope and expect we will meet the targets,
though of course as with all combined operations (as this is a
combined operation between ourselves and the police) one cannot
wholly guarantee it, not least because the establishment of CJUs
is often about bricks and mortar and accommodation, and as anyone
who has had anything to do with bricks and mortar knows, you can
sometimes be thrown off course. So we hope to meet those targets
and we will be pushing to that end. On Warwickshire, I have only
been in post for a matter of weeks and I have not had a chance
to visit Warwickshire yet. It is an interesting model which takes
them further, but we would want to see it in operation before
we commit to a view about being replicated elsewhere.
7. Have Criminal Justice Units and other initiatives
really improved the level of communication between the CPS and
the police, or could more be done to ensure that the CPS is consulted
at an earlier stage, if you think that is advisable, particularly
in serious cases? What are you doing to ensure that advice given
to the police at the pre-charge stage complies with the agreed
14-day time limit?
(Mr Calvert-Smith) I hope I have, in my over-long
first answer, covered most of the first part of your question.
The answer, I am quite sure, is yes. We carried out, jointly with
the police, a survey of the existing Criminal Justice Units, partly
to see how they worked and partly to encourage those who were
still yet to take the plunge to do so, and the feedback from both
sides was uniformly positive. So that I am quite sure they are
an experiment which is working. The second part of the question,
which I have not answered?
8. Meeting the 14-day target.
(Mr Calvert-Smith) If you have read recent CPS Inspectorate
reports, you will have noticed that we frequently and significantly
fail to meet the 14-day deadline. Historically, that has been
because in what is now conceded to have been an under-funded service
all the resources had to be directed at cases in court, and advice
sometimes had to wait because there were cases to be done. We
are now in the middle of a very substantial recruitment exercise,
and I am confident, therefore, that we will be in a position (a)
to meet the 14-day target, except in cases of quite exceptional
complexity of course, and (b) to develop our ability to give early
advice to the police. Both the recruitment campaign and the steps
we may take (clearly, this will require government approval) to
extend the remit of the designated caseworker to free lawyers
to give legal advice would help in that direction.
Chairman
9. Mr Calvert-Smith, are you in favour of the
Government's proposals to allow the admission of previous convictions?
(Mr Calvert-Smith) I am in favour, because we have
put it in our response to the Law Commission, of the limited extension
recommended by the Law Commission, which requires relevance and
a judge to rule on relevance, rather than, as some would recommend,
a blanket admission so that at the beginning of the case the jury
is told "This is a man of 42 with X convictions; they may
or may not be relevant." I cannot see how that helps. I am
only too well aware from practice that there are certain types
of conviction which, although they may have some relevance to
the credibility of the accused (or, indeed, the witness for the
prosecution, because this must apply across the board, however
it is brought in) there would be undue prejudice. The research,
I think, from New Zealand which Sir Robin quotes in his report
is that certain very scandalous convictions for offences that
we can all think of do seem to have an unduly prejudicial effect,
so that juries find it difficult to put them out of their minds.
To the extent that they are relevant to an issue in the case,
and subject to the discretion of the judge to say, in a given
case, "This is too prejudicial, this will unbalance the trial",
we are in favour. I think if one is in favour of juries (juries
of the Sir Robin Auld mould, drawn from all sections of society)
and one trusts juries, and these days juries know that lots of
people have previous convictions anyway because they read about
it in the newspapers, we ought to be able to trust them in most
cases to come to correct verdicts on the evidence, using the previous
bad behaviour only in a relevant way. So, yes, to that limited
extent.
10. It is dangerous territory, this, is it not?
(Mr Calvert-Smith) It is.
11. There is always the temptation anyway for
the police—and the more dreadful the case the greater the
temptation—to go and round up the usual suspects.
(Mr Calvert-Smith) Yes. I entirely accept that, and
it is a risk one would have to guard against. Looking ahead, Crown
Prosecutors do not use in their assessment of the strength of
the evidence, for instance, the failure of an accused to answer
questions at interview, albeit if there is sufficient evidence
the court is allowed to add such weight as they think appropriate
to that failure either to answer questions or give evidence. Similarly,
I would say that we would always want to look at the evidence
aside from the bad character evidence and say "Well, does
that evidence add up to a case that we should be putting before
the court?" If it does not, the fact that he has got a string
of convictions should not influence that decision, except insofar
as the similar fact rules apply and there is a hallmark—under
current law.
12. Yes, similar fact evidence we can understand,
but for example, with an armed robbery, you could just go and
pick up an armed robber who has just been released and put him
down for it. It has been known, has it not?
(Mr Calvert-Smith) You cannot bring such a person
to trial without there being convincing evidence that he is the
person who did it. The question then would be, if, for instance,
as is currently the case, there is any issue in the case which
would be helped by knowing that he had done it before. At the
moment, of course, if he attempts to establish his good character
or—
13. That is understandable. Nobody with a previous
track record is going to establish good character, is he?
(Mr Calvert-Smith) I have seen it.
14. You have seen it! You have got an obvious
answer to that, have you not?
(Mr Calvert-Smith) Of course. The question is, how
can you move the goalposts sufficiently for relevant previous
evidence of bad character without, as you say, simply saying "This
is just the usual suspects". I would say, Chairman, that
I have prosecuted and defended in many, many cases where the defence
has chosen to run the defence "You have picked me up because
I am one of the usual suspects. You have picked me up because
I have got a string of previous convictions. You have planted
this, you have invented that", and juries have, in the end,
in many cases, acquitted. So I do not think it is impossible,
and I have seen it for myself, for a defendant to have a fair
trial at the hands of a jury even though that jury knows of his
or her past.
15. You envisage this would be used sparingly,
do you?
(Mr Calvert-Smith) Yes.
16. On the question of what constitutes significant
evidence, can I just ask you about the cell confession, which
has featured in a number of prominent cases recently, and very
often collapses, usually after a few years, when we discover that
the individual who is alleged to have overheard a confession thought
he was going to get preferable treatment when it came to parole,
and goes and tells a television company. We have had one or two
recently that have collapsed very shortly after the witness was
out of the door. Are you nervous about using cell confessions
as the main plank of evidence against someone?
(Mr Calvert-Smith) I think one has to think long and
hard about cell confessions generally. We do, and there are very,
very many cases where we have advised against a prosecution because
that, in the end, is all there is. Of course, each case is decided
on its own facts by an individual lawyer assisted usually, in
high-profile cases (of which, no doubt, you and I are thinking)
by advice from experienced counsel. So that the cases that are
brought are only brought after enormous care is taken. Clearly,
in some instances that decision, in hindsight, turns out to be
the wrong one, when, as you say, true or false, the witness then
goes, sometimes for another base motive, and says "I was
lying all along and now will you pay me for my story?" So
that "earwig" conversations, as they are known in the
slang, are very dangerous animals. If one goes beyond that and
says "Well, actually, one should never rely on the word of
a serving prisoner who has everything to gain by lying—possibly
money from a newspaper", then you are ruling out of account,
say, assaults by one prisoner on another, or where the only evidence
will be from somebody who is a serving prisoner. If you say that
all evidence that is given by people who are themselves serving
prisoners, convicted perjurers or whatever, has to be ruled out
as a matter of course, then you are, I think, making an equally
great mistake. In none of the cases that I am aware of where there
was a cell confession did the prosecution only have the cell confession,
albeit in some cases, I would concede—
17. We can all think of prominent cases where
it was just about all they had.
(Mr Calvert-Smith) Sometimes it is just about all
we had by the time we got as far as the jury, or at the end of
the case after all the evidence was in—although we might
have thought we had more when we started.
18. Yes. For example, you thought you had two
cell confessions, one collapsed and you were left with one.
(Mr Calvert-Smith) Yes, but there was other evidence
in the case we are both thinking of.
19. Does it not strike you as odd that someone
who might have been subject to days of police interrogation and
has declined to own-up appears to own-up the moment he is put
in a cell on remand?
(Mr Calvert-Smith) I think that may be stretching
it a bit. It is not usually alleged to have happened the moment
he is remanded.
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