Examination of Witnesses (Questions 20-39)
MR DAVID
CALVERT-SMITH
QC, MR RICHARD
FOSTER AND
MR STEVE
PRZYBYLSKI
TUESDAY 26 FEBRUARY 2002
20. Or very soon after.
(Mr Calvert-Smith) I think it is a fairly obvious
conclusion, assuming guilt for a moment, that a guilty person
is more likely to confide in a cell mate than he is in a police
officer to whom a confession, in front of a solicitor as well,
will seal his fate.
21. Do you think the police are occasionally
in the habit, when they know they have got a rather weak case,
of making sure that someone is banged up on remand with a prisoner
who might be susceptible to overhearing a cell confession?
(Mr Calvert-Smith) I do not know whether that happens
or not.
22. It is not an unreasonable suspicion.
(Mr Calvert-Smith) We are all aware of microphones
being inserted in cells in the hope that something useful may
emerge through some conversation in the cell. As regards the selection
of the cell mate, I, personally, have never been involved in a
case in which I have had a close hand in the prosecution where
that was either alleged or conceded, but it would be impossible
for me to rule it out.
David Winnick
23. Sometimes there is a feeling that the prisoner
who is giving evidence against the person who is charged is doing
so because he believes that as a result of such evidence which
helps the prosecution his sentence is going to be substantially
reduced. Therefore, that prisoner has a motive in concocting a
story. It does not, of course, add much for the cause of justice.
What do you say to that?
(Mr Calvert-Smith) Well, unfortunately, we, as prosecutors,
have to work with the tools we are given. Frequently we call witnesses
who have—and it will always be exposed in cross-examination—or
may have a motive for not telling the truth. The whole of the
law on corroboration, until it was formally abolished recently,
was based on the fact that in certain classes of case witnesses
are liable to make up allegations and, therefore, there cannot
be a conviction without corroboration. Similarly, with cell confessions
and supergrasses and people who turn Queen's evidence generally;
you will get a lighter sentence because you have turned Queen's
evidence. That is a fact of life. What we cannot do, it seems
to me, if we are attempting to keep abreast even remotely of the
scale of crime in this country, is turn our back on sources of
evidence, provided that the proper tools are given to the defence
to challenge it, so that they are put fully in the picture about
what offers have or have not been made, and so that the jury,
in due course, properly directed by the judge, has the full facts
and can make its decision.
24. When a prisoner claims the person being
charged has said this and the other (and, as the Chairman has
indicated, it does seem rather remarkable that a person has absolutely
denied it—although he may be lying through his teeth—but
the moment he is in the prison cell he confesses all, it does
arouse suspicion) I wonder would it be useful, if it is not already
done, to have a rigorous examination of such prisoner witnesses
so that the case is not discredited in court?
(Mr Calvert-Smith) As far as they are able, I am quite
sure that the police forces do carry out such a rigorous examination.
25. In all recent such cases which have been
pretty highly publicised?
(Mr Calvert-Smith) The first thing they will always
try and do, in my experience—and I cannot speak for individual
cases but only ones I have been involved in—is to try and
get a tape smuggled in so that if he is going to say it he will
say it so that everybody can hear it. That has been done in some
cases. Where that has not been possible or it has not worked,
then one has to look at the other evidence. As I said in my earlier
answer to the Chairman, we turn down a very, very large number
of cases which are based on this sort of evidence because we concede
a mile off that they are not going to get to a conviction.
26. Because it is clear that the prisoner who
is willing to give prosecution evidence is simply unreliable?
(Mr Calvert-Smith) Precisely.
27. When you say a large number of cases—?
(Mr Calvert-Smith) I would not like to put a figure
on it because I do not know the answer to it. All I can say is
that personally I have seen a number of cases in my career in
which cell conversations have really been the high point of the
case and said no. I am quite sure many of my colleagues in the
service have done so.
Chairman: Can we turn to the CPS in London.
Bob Russell
28. Gentlemen, just concentrating on London
for a moment, which obviously is the largest in terms of caseload,
the Inspectorate has highlighted some serious problems with the
performance of the CPS in London. What are you doing to improve
the situation? Have you got an action plan?
(Mr Calvert-Smith) Certainly. I will share this answer,
if I may, because it crosses the boundaries. I will start off
by saying that the senior management team in London was criticised
for its failure to act as a coherent entity, which gave rise to
some of the problems, and we are taking active steps to ensure
that that situation is improved. The area itself has produced
a voluminous action plan which both law officers, who take a close
interest for the reasons you mentioned—that London is, after
all, more than one-fifth of our entire workload—and I and
Richard Foster will be supervising on a much more direct basis
than we would a normal CPS area under the devolved Glidewell system,
which is theoretically trying to release power down to areas to
manage their own business and make up their own solutions. Can
I ask Mr Foster to mention a couple of issues which he is over-seeing?
(Mr Foster) There are clearly a number of problems
in London, as the Inspectorate report identified, and I have already
made it clear both to the DPP and to Ministers that stabilising
and improving that situation is one of my top priorities as chief
executive.
29. So stabilising is the first priority?
(Mr Foster) I think that would be fair. What have
we done so far? The current CCP in London has decided to take
early retirement and we have already put in hand, against a very
aggressive timetable, arrangements to find a replacement. We ran
the advert a matter of weeks ago and we hope to make an appointment
by the end of March. We have strengthened the team immediately
below the CCP. There are now five ACCPs in post (that is Assistant
Chief Crown Prosecutors), which will give London a much stronger
senior cadre of prosecutors than anywhere else in the country.
30. Can I ask where these five are coming from?
(Mr Foster) In one case an existing CCP who has moved
into London. We have brought in from Yorkshire one of our most
experienced managers to strengthen the management team. We have,
in addition to that, set up a project which I chair which is specifically
to implement the findings of the Inspectorate report and to go
beyond that and to secure improvements more generally. Those are
things that we have done within the last six to eight weeks. Finally,
we have, in addition to the extra funding that we have already
allocated to London in the course of last year, allocated a further
£2 million to London within the last couple of weeks to enable
them to recruit more lawyers and more caseworkers as part of the
stabilisation I was talking about, and we are looking hard at
whether or not additional resources are needed.
31. Apart from the person from Yorkshire, what
other best practice from other areas have you brought into London
to deal with the problem, which I think everybody agrees is quite
substantial?
(Mr Foster) I am a very strong believer in a project-based
approach to solving problems of this kind. I have had experience
of that working elsewhere, and that is what I have done. We have
set up a project and one of the first things that project will
be looking at is four or five areas where we can make the biggest
improvements, fastest in order both to make real improvements
and to give managers and staff in London, and our clients, a real
sense of things moving forward. As part of that we will be looking
across the country at the best things that we are doing in particular
areas, such as on attrition for example, which is a ministerial
target, and using that experience through the project to drive
forward performance and morale in London.
32. Are you behaving like a football manager,
just shuffling the pack he has already got?
(Mr Foster) No. We are bringing in additional expertise
to strengthen the existing team, but we are not shuffling out
the existing team.
(Mr Calvert-Smith) Could I mention one particular
problem which, as a Londoner myself, rather stood out from the
report and related to your question of outside best practice?
I think the starkest finding for me was the fact that far too
many cases are being discharged at the committal proceedings because
the prosecution is not ready, which is almost always a combination
of the CPS and the police failing to get their act together in
time before the magistrate or magistrates lose patience. We are
not good enough, again jointly with the police, at getting those
cases back on their feet as we are allowed to do if there is sufficient
evidence. West Midlands had that problem highlighted about two
years ago in a very similar report—at least on this topic;
alleged offenders being discharged without the court having had
a chance of deciding whether they were guilty or not. They have
put in place a highly successful plan which has reduced the discharge
committal rate to an acceptable level and shown that those cases
which need not have been discharged have actually been reinstated.
Clearly, the West Midlands experience must be transferred to London
because there is a whole set of expertise there.
33. That suggests there is not the strategy
working in London, bearing in mind all the serious cases that
you have to do. Is it a numbers game? Do you need more physical
bodies to do the work? Is it that the numbers are okay but you
need people who are more experienced? What is the strategy for
the retention of those good staff and recruitment of the good
staff that you need to do the job?
(Mr Foster) I think it is very important not to identify
one single thing and proceed as if it is just that. For my money
there are four or five key things that we need to get right and
they need to be got right together. First and foremost is the
strength and the skills of the senior management team, and we
have touched on that. The second thing is making sure that we
have got sufficient experienced staff at all levels. The additional
money I have referred to, linked to recruitment exercises that
are already in train, will mean that we get a lot more experienced
lawyers and caseworkers into the area. The third thing that we
need is more up-to-date and accurate information than we have
got at the moment to enable us to manage key areas. The fourth
thing, I think we need, is a much better communications strategy
within London, by which I mean not just communications downwards
but also communications upwards and making sure that staff and
managers feel they can really express their concerns and have
them taken seriously and addressed. The final thing we need is
a well-thought through estates and IT strategy. We need all of
those things taken in combination.
34. What you are saying is there is still a
lot of pieces of the jigsaw yet to be assembled, let alone putting
the picture together. When are you going to get all the pieces
together and when will the picture be complete, assuming you know
what the picture is going to look like?
(Mr Foster) I think we have got a very clear idea
what the issues are. As the Director said, we already have a largely
settled action plan in response to the Inspectorate's report and
we have a project and project team in place. I think staff working
in London will start to see signs of real improvement over the
next couple of months. Indeed, there are some signs that staff
are beginning to feel that the position is improving already.
However, as always, when you are tackling quite a deep-seated
problem it will take time to get it right. I have set myself a
personal objective of making real improvements and seeing tangible
evidence over the next 12 months. If I am being frank with you,
I think that is a realistic time-scale.
35. So 12 months for improvements, but when
do you think the picture will be completed as you would wish to
see it and as London would wish to see it?
(Mr Foster) If you mean by that when will we have
a clear and agreed action plan, within the next few weeks. If
you mean by that when will it be the case that London is performing,
say, alongside the top quartile of areas in the CPS, I think that
is a two-to-three-year time-scale.
Chairman
36. Does anybody know what percentage of cases
fail to reach court for one reason or another?
(Mr Calvert-Smith) There are a number of types of
cases that do not get to court. I will start and I may hand over
to Mr Przybylski. We discontinue, in the sense that usually for
evidential reasons, but on rare occasions for public interest
reasons, we stop existing cases in about 13 per cent of the cases
in which there has been a charge. Going back to the first question
I was asked, I very much hope that that percentage will reduce
because we will get the charge right.
37. So 13 per cent of all cases?
(Mr Calvert-Smith) Yes. That is cases we stopped deliberately
because we say they should not go any further. So far as the cases
which are stopped because of a failure of ours which we have not
spotted either because we are not ready—as you said, Mr
Russell—or because the judge at the end of the prosecution
case says "There is not a case to answer, I am stopping it",
in that sort of case I will hand you over, if I may.
(Mr Przybylski) We divide our cases, of course, into
the two jurisdictions, magistrates' court, and Crown Court. There
are about 13 per cent discontinued in the magistrates' court.
There are other cases written off. They are administratively written
off, occasionally because a defendant has died but, more often,
because a defendant is on the run because a warrant is outstanding
for his arrest. There are other cases that do not succeed later
in the process. These can be cases where the defendant is bound
over, where the case is dismissed "no case" at the outset
of the contested hearing or where it is dismissed after the trial.
That is how, if you like, the unsuccessful outcomes are brigaded
in the magistrates' court. I suppose there are about 22 per cent
of all cases that fall into that entire category.
38. So 13 per cent of all cases, magistrates'
court and Crown Court, discontinued for one reason or another
and 22 per cent discontinued of what—all Crown Court cases?
(Mr Przybylski) No, no, 13 of the 22 are discontinued,
and these are in the magistrates' court, and then there are progressively
smaller proportions of cases that are bound over, written off,
dismissed "no case" or dismissed after trial. About
80 per cent are successful in the magistrates' court.
(Mr Calvert-Smith) Another 9 per cent, in fact.
39. Of about a fifth of all cases.
(Mr Przybylski) Yes.
Chairman: Thank you.
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