Examination of Witnesses (Questions 20-39)
CROWN PROSECUTION
SERVICE
8 MARCH 2006
Q20 Chairman: In America, where you
can build a political career on it.
Mr Macdonald: People want to join
the state prosecuting authority. They learn their trade, if they
are really good they go off into private practice. We have just
recruited into our Organised Crime Division, five senior barristers
to work as in-house senior Crown advocates. We are recruiting
from the Bar to put advocates into the Snaresbrook Crown Court
as in-house advocates. We are dramatically increasing the extent
to which we do our own advocacy and this is having a big impact
on people's view of whether we are a desirable place to work.
Most criminal lawyers want to do advocacy. If you have an organisation
which tells them they cannot do advocacy, they will not join it,
and we are changing that.
Q21 Mr Mitchell: You said that it
started off under-funded and under-staffed and that is certainly
true, but from what you are saying many of these problems must
in fact remain, because it all bespeaks a situation where staff
levels are not adequate and you do not have enough people to do
the job.
Mr Macdonald: You would not expect
me to sit here and say I should not like to recruit more lawyers.
With the charging initiative, we were allowed to recruit an extra
480 and we now have 2,800. Of course I should like more lawyers.
We were given more funding, we do have a lot of lawyers and the
question is whether we have them doing the right jobs. We still
have too many lawyers doing quite low-grade work which does not
require legal input. The Report refers to some lawyers doing admin-type
tasks. They should not be doing that. Lawyers should not be doing
routine magistrates' court hearings; we should be using our DCWs
to do that, our paralegals. We can only do that if the Courts
Service lists courts just to do DCW work, otherwise we have to
have a DCW and a lawyer in court. With inter-agency cooperation,
we can get our lawyers away from the less-skilled work and have
them concentrating on what they should be doing. They are expensive.
We pay them well. They should not be doing low-grade work; they
should be doing work at the top end of the market and we are actively
moving into a new system where they do that. I have just increased
the remit of DCWs, so they can cover a wider range of work in
the magistrates' court. I have already said something about HCAs.
We are determined that our lawyers, who are well paid, have job
security and good working conditions by and large, should concentrate
on work which genuinely requires their expensive input. We should
be able to provide a good service with what we have. We should
obviously like more resources; we should obviously like more lawyers.
Q22 Mr Mitchell: The Report says
that there is inadequate prioritisation of cases which require
urgent action and even cases which are being delayed are not then
sufficiently prioritised to put them forward next time. Why is
that?
Mr Macdonald: It is a fair criticism
and it is partly because we have been overrun by the sort of procedural
and evidential requirements that the Chairman was hinting at a
moment ago, that everything in the magistrates' court has become
more complex. Partly it is because we still do not have a sufficiently
close relationship with the Courts Service, so too many cases
are still being swapped from one courtroom to another and it is
difficult for us to know at the end of the day which lawyer is
going to be presenting the case in court. It is partly because
we have not organised ourselves well enough internally.
Q23 Mr Mitchell: Who puts the priorities
on internally in your Service?
Mr Macdonald: The unit head. We
have groups of lawyers and the head of a group of lawyers is called
a unit head; he is what we call a level D lawyer usually, which
is a senior lawyer. He or she is supposed to do that, but until
you have a system closer to the system being recommended by the
NAO of dedicated teams of lawyers working with dedicated teams
of officers in a particular court, it would be difficult to manage
that. One thing that we need to get across is that this is a bulk
area of work. We prosecute 1.3 million cases a year. Quite a lot
of that is obviously traffic, which may not need a lawyer involvement,
but there is a vast amount of work in the magistrates' court and
this is a huge job of organisation. In recent years following
the Glidewell Report we have split ourselves into two groups as
far as lawyers are concerned: lawyers who deal with the magistrates'
court, who are called the Criminal Justice Units and lawyers who
deal with the Crown Courts, who are called the Trial Units. I
am not sure that was ever a good model because lawyers became
de-skilled, but now that we are doing charging and now that we
are doing advocacy and now that we want to have a cradle-to-grave
service from the beginning of the process right through to the
end, I am quite sure that is not the right model. What we are
moving to is a model of the sort that appealed to the NAO: combined
units of lawyers who do all of that work, with different skills
and different responsibilities but working within a group of lawyers
with a group of police officers at a particular court. Prioritisation
will be a lot easier to achieve under that model. The model we
have at the moment was always going to make prioritisation difficult.
Incidentally, the new model that we are talking about, we could
not really have moved to until we were given these new responsibilities
and new roles, by which I mean charging, responsibility for witness
care and an increasing role in advocacy. All of these things have
led us to the position where this sort of reorganisation makes
sense for us across the whole range of our business.
Q24 Mr Mitchell: You are talking
about teams. Why can you not have a system where one lawyer is
responsible for one case and all the consequences fall on his
or her head if that case is not pursued?
Mr Macdonald: The ideal for us
is that the lawyer who prefers the charge builds the case and
argues it in court. The barristers we have recruited to do some
of our advocacy at Snaresbrook will do exactly that. They are
going to rotate between the charging centre and the Crown Court
and that is the best model. Because of the vagaries of listing,
it is going to be impossible to follow that model consistently.
Q25 Mr Mitchell: Why?
Mr Macdonald: Because cases get
swapped at very short notice. Sometimes a case is switched from
one courtroom to another. So you might have a lawyer turning up
at court who has five of his own cases to do, he arrives at court
and suddenly he is told that two of those cases are going to be
in court number three. So they get handed to the lawyer who is
covering court number three and he or she has to read it at short
notice and present it. This is not ideal, but it is difficult
to arrange.
Q26 Mr Mitchell: Is that the decision
of the court?
Mr Macdonald: Yes.
Q27 Mr Mitchell: You are vulnerable
there; you are totally vulnerable.
Mr Macdonald: We are always going
to be vulnerable and I am not criticising the Courts Service;
they have difficult logistical problems too, but we should see
less of that. We should be moving to a system where there is a
lot less of that and that is obviously about cooperation between
us.
Q28 Mr Mitchell: You win 81% of the
cases.
Mr Macdonald: It is 81% across
magistrates' court and Crown Court; 81% in the magistrates' court.
Q29 Mr Mitchell: Very high. That
means that you are dealing with the cream of the cases, the most
winnable cases. Since you are taking the sure-fire winners it
is difficult to see why it cannot all be made tickety-boo in terms
of witness appearance, in terms of all the information that is
necessary in terms of gathering all the evidence and putting it
in the right compartments in the file, why it cannot all be done
because these are such straightforward cases. You have chosen
them as winners.
Mr Macdonald: No, they are not.
We do not only prosecute the winners.
Q30 Mr Mitchell: But you do concentrate
on the most winnable cases.
Mr Macdonald: No, we do not actually.
The test which we have for prosecution is that in the view of
the lawyer there has to be a realistic prospect of conviction,
which simply means over 50%. We would prosecute a case if we thought
there were a 51% chance of winning it and it was in the public
interest to prosecute it. The figure that you cited of 81% includes
guilty pleas. We win about 73% of contested cases, not-guilty
pleas, in the magistrates' court and probably a bit less than
that in the Crown Court. Those figures are probably about right.
If we wanted to bring only the more winnable cases, I would adjust
the guidance and tell prosecutors that from now on, we would only
prosecute cases where there was a strong prospect of a conviction.
I do not want to give long answers but I do want to say one other
thing about this because we, responding to public confidence concerns,
are concentrating particularly hard on prosecuting some types
of cases which are almost bound to involve the problems which
you see in this Report. I am thinking of sex cases and domestic
violence. There is a huge attrition rate in domestic violence
cases. They collapse to a very high extent because the victims
often withdraw. In responding to public concerns and prosecuting
more of these cases, and we were praised this morning by the refuge
organisation on television for our approach in this area, by doing
that we are making a rod for our own backs because we are increasing
the discontinuance figures. We accept that; that is going to happen.
It is very far from accurate to say that we only prosecute sure-fire
winners. We prosecute lots of very, very challenging cases and
I sometimes have to make decisions on them myself and sometimes
the decision is very finely balanced. We do not expect to win
all of our cases; we expect to lose a significant number.
Q31 Mr Mitchell: You expect to win
the majority.
Mr Macdonald: Yes.
Q32 Mr Mitchell: In any case the
point is that the degree of preparation is disconcerting, given
the fact that you need to be prepared and that the Courts Service
has some means of shifting things around and the prosecution always
has to be as dodgy as it can, as our Chairman has just told us.
Mr Macdonald: I am not sure I
would accept that description. I think he was talking about the
defence.
Q33 Mr Mitchell: You manipulate the
system in a way most favourable to the client, put it that way.
It is still disconcerting to read that the prosecution was not
ready in 9% of the cases and that in 15% the charges were dropped
on the day of the trial. How on earth can that happen?
Mr Macdonald: I am not sure whether
that figure includes the situation where defendants quite often
plead guilty on the day of the trial. The reason is that they
are waiting to see whether the witnesses turn up. If the witnesses
turn up, they plead guilty. It is quite difficult to deal with.
This is very bad, because first of all it is stressful for the
witnesses, particularly the victim. Secondly, it means that everyone
has spent time and money getting the case ready and the defendant
always intended to plead guilty. One of the ways we are trying
to address this is to make it more and more likely that the witnesses
will turn up. We have opened witness care units, 195 around the
country staffed by police and CPS staff whose sole job is to keep
in touch with witnesses, to encourage them to court, to address
their concerns and to help them with any difficulties they have.
In the areas where we have opened these units, we have seen a
significant increase in witness attendance. The message will get
through and if magistrates made it plain that defendants who pleaded
guilty on the day of the trial were getting stiffer sentences
than defendants who pleaded guilty at the first appearance, then
if that message gets through, I would hope to see some movement.
This extent to which under our culture—and this is not true
in other countries—defendants tend to plead guilty at the
last minute is very damaging to the whole system actually.
Q34 Mr Mitchell: It is. I have come
across the problem with witnesses in cases in Grimsby. Nevertheless,
failure to obtain sufficient evidence accounted for one third
of the figure. It is not just witnesses.
Mr Macdonald: We do not collect
the evidence, the police collect the evidence. We can advise the
police.
Q35 Mr Mitchell: You know what it
is and know whether it is adequate and can insist that more be
gathered if necessary.
Mr Macdonald: Yes, but if it does
not come, it does not come. If we say that there is a CCTV tape
and we need it or if we say that some medical evidence is needed,
if it does not come, it does not come. There are quite a lot of
discrete issues here that we could make progress on. For example,
getting medical statements out of hospitals is a terribly difficult
and time-consuming process. In some parts of the country we have
entered into protocols with local hospitals and that helps. It
may be something we would want to take up with the National Health
Service on a national level. CCTV is a big problem. I think I
am right in saying that there are 800 different formats out there
on CCTV cameras, depending whether it is a local authority or
a shop or what kind of shop and the playback equipment cannot
deal with them all. Around the collecting of evidence, whether
it is forensic evidence, medical evidence or CCTV evidence, there
are all sorts of issues completely beyond our control actually.
We do not gather the evidence. We can say what evidence we need
and hopefully it is obtained.
Q36 Mr Davidson: When you were speaking
earlier on, you indicated that you found the NAO approach very
useful.
Mr Macdonald: Yes.
Q37 Mr Davidson: Does your system
have no internal re-examination process that would have led you
to have examined a lot of these things yourselves anyway? Surely
the NAO coming in should not have been a blinding flash of light?
Mr Macdonald: No, I accept that.
The point is that over the last two years—I shall just talk
about the last two years because that is the period that I have
been here—we have been pushing through a very radical reform
programme actually to make us much more—
Q38 Mr Davidson: Time is short. Still,
there must have been a number of things. I got the impression
from what you said that the NAO were revealing a whole number
of things that you had not previously been examining. Why is your
system insufficiently rigorous?
Mr Macdonald: That is not right.
We were in a structure which we had adopted because of the Glidewell
Report in 1999.
Q39 Mr Davidson: Was there nothing
new then really in what the NAO was drawing to your attention?
Were you aware of all of it and dealing with all of it?
Mr Macdonald: One of the things
that the NAO referred to in particular was what is happening in
Cardiff, which is something that we did off our own bat and they
reviewed that as best practice which we ought to pursue. We were
looking into how we could move from Glidewell into a combined
unit system and that would undoubtedly have involved some of the
things the NAO was talking about.
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