Examination of Witnesses (Questions 120-139)
CROWN PROSECUTION
SERVICE
8 MARCH 2006
Q120 Mr Khan: So it would be unfair
for us to judge you just on the basis of how effective you are
vis-a"-vis delays.
Mr Macdonald: I think so. It is
a public service and it is constitutionally important but there
is a wide range of measures. This is one aspect of our work.
Q121 Mr Khan: The experience of you
and the Chairman in magistrates' courts is probably even longer
ago than mine; it is not for me to say. As far as the criteria
of delay and charges being dropped are concerned, how are we doing
compared with when the CPS was first set up 20 years ago? Are
we better than we were then or worse or have there been peaks
and troughs?
Mr Macdonald: All the figures,
all the measures about ineffective trials and all that sort of
thing are all improving. I am quite clear that we are in a much
better position than we were five years ago. We still have a long
way to go but we are improving as an organisation, I am quite
confident about that.
Q122 Mr Khan: What about the Chairman's
point: 10, 15, 20 years ago?
Mr Macdonald: The late 1980s.
There are people in this room who have worked for the CPS since
then; the ones who stayed were pretty brave individuals. I remember
the view of the bar about the CPS in the late 1980s, I remember
the view that the legal profession generally took of the CPS—it
was unprintable.
Q123 Mr Khan: So the direction of
travel is going the right way.
Mr Macdonald: I think so.
Q124 Mr Khan: May I just say that
my overriding memory of magistrates' courts seems to be of waiting
around. I spent a lot of time just waiting around. It is quite
clear that some of the cases being moved from one court to another
are to do with DCA problems, but what discussions do you have
with the DCA about timetabling of cases, location of cases et
cetera?
Mr Macdonald: One of the advantages
we had was the creation of Her Majesty's Courts Service which
means there is now a unified organisation running the magistrates'
courts and the Crown Courts across the country. We regularly meet
with the DCA to talk about ways in which they can do things which
would help us: courts for DCWs; moves not to switch cases between
courts so often; cooperation on listing—
Q125 Mr Khan: How fruitful are your
discussions?
Mr Macdonald: It is early days
for HMCS. We work together in a co-operative spirit. I am sure
there is more we can do.
Q126 Mr Khan: For example, if we
were to make a recommendation for greater co-operation might that
help?
Mr Macdonald: We should all welcome
that.
Q127 Mr Khan: You talked about summary
justice and Mr Bacon pursued this. In your experience, it is not
really touched upon in the NAO Report, how many defendants are
unrepresented?
Mr Macdonald: I cannot answer
that question, but I suspect in the simple guilty pleas it would
be quite high. We probably can provide a sort of answer;[4]
I do not know exactly how accurate it would be.
Q128 Mr Khan: Could you drop us a note
on that?
Mr Macdonald: We shall try to
find out.
Mr Khan: The Chairman slandered defence
lawyers for trying to make the system not work.
Chairman: I take that back: a fine outstanding
body of people.
Q129 Mr Khan: I should be interested
to know how many defendants are unrepresented.
Mr Macdonald: I remember from
my time and you probably remember the same, that the first large
batch of people being processed through the magistrates' court
tends not to be represented.
Q130 Mr Khan: My suspicion would
be poor duty solicitors would be equally as ill-prepared to represent
unrepresented defendants on the day of hearing as your poor colleagues
at the CPS. That is already talked about in the NAO Report, which
would seem to me to be an additional reason for problems with
delay and other things like that.
Mr Macdonald: Could be.
Q131 Mr Khan: May I also ask the
NAO to look into that issue of the defence side? You use the word
"defence" which I think is a generalisation for defendants
who are represented and those who are not. There are issues around
this which are worthy of investigation.
Sir John Bourn: Yes; we will.
Q132 Mr Khan: The next area I want
to explore is that the Report talks about the fact that many of
your lawyers, those who present the prosecution, get given the
case papers less than 24 hours before a hearing and if it is a
trial, less than two days before a trial. Why is that?
Mr Macdonald: It is because of
the way we are organised internally and partly it is because cases
move between court rooms. We do need to have more continuity and
more ownership of cases and the new sort of organisation, when
we move to it, ought to provide that, in other words lawyers working
in much tighter teams. We are asking lawyers to go to court more
than they used to. We are trying to move out from behind our desks,
so that we do not just review cases, but we argue them as well
and that is important for us as an organisation. It does mean
that lawyers have less time in the office and we are still feeling
our way through this to be quite frank about it.
Q133 Mr Khan: Do you think that is
the most effective use of a prosecution lawyer's time for the
lawyer who prepares the case and does the work to be the lawyer
who prosecutes it?
Mr Macdonald: That form of accountability
is essential. If you are making a charging decision, there is
no better discipline than knowing you are the one who is going
to have to go to court and argue it. If you are farming the case
out to an agent, whether it is a solicitor or a barrister, there
is always someone else who can take the blame if you have not
done a piece of work. You are not the one who gets it in the neck.
Presenting our own cases exposes us in a way which will be very,
very helpful to performance management.
Q134 Mr Khan: Would that deal with
some of the problems you have in your relationship with evidence
gathering, with witnesses, how reliable they will be and whether
they will turn up?
Mr Macdonald: I think so. The
other reform which is helpful to us here of course is the new
right we have to interview witnesses before trials start. It is
very important in sex cases in particular, but in all other sorts
of cases actually, many other sorts of cases.
Q135 Mr Khan: You talked about the
police and CPS working more together now than they have done for
the last 20 years, because although they are still separate, they
work together more. What has your experience been of the working
relationships inside police stations? As I understand it, police
officers, before they charge, liaise with the CPS. What is your
experience of that?
Mr Macdonald: We have duty prosecutors
in the police stations and the officer will come with the evidence
and they will have a conversation. The duty prosecutor will make
his or her decision. We also have lawyers co-located; we have
teams of lawyers working in police stations side by side with
the police and this is a model which is familiar in other jurisdictions
and it is clearly building up very constructive relationships.
There are obviously rubbing points here. Some of our people did
not want to go into police stations, some police officers resent
the charging initiative, but by and large there is a very constructive
relationship between prosecutors and investigators. We have to
maintain our independence; there is no point just giving the police
the advice they want to hear. However, with that standpoint, working
together, we can achieve a lot more.
Q136 Mr Khan: If we were to see,
for example, fewer people being charged in years to come, it might
not be because you are going soft, it might be because the police
are receiving better advice from you.
Mr Macdonald: I hope we shall
just find more people charged with sustainable cases, rather than
fewer people charged.
Q137 Mr Khan: Do you have a comparison
internationally as to how your overseas partners are doing and
whether there are lessons to be learned?
Mr Macdonald: The extraordinary
thing about this is that I do travel quite a lot because we are
moving to do things the way they do in the States and Canada and
Australia. The truth is that our foreign partners do not keep
these kinds of figures; it is quite extraordinary. They are not
bothered in America about how long it takes a case to get to trial
or ineffective hearings; they have a completely different approach.
For example, in America they do not want the right charge first
time: they want a higher charge than is right first time so they
can then negotiate it down. It is a completely different culture.
They do not tend to keep the sort of figures that we do, so it
is quite difficult to make international comparisons.
Q138 Mr Khan: How long should we
wait to invite you back and expect to see improvements in the
figures we have seen today?
Mr Macdonald: I do not know how
often you have people back.
Q139 Mr Khan: We can have you back
next week, in three months or a year.
Mr Macdonald: That might be a
little optimistic.
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