Clause
58
Extension
of powers of non-legal
staff
Question
proposed, That the clause stand part of the
Bill.
3.15
pm
Mr.
Burrowes:
The clause is significant, dealing as it does
with matters of principle and application relating to how we view the
magistrates court and whether we wish it to have the independence and
provide the quality of justice that all parties involved in the justice
system—be it the defendant, the prosecutor or the
victim—would regard as important.
I would like
to begin by dealing with those who do not support the clause. First,
the Magistrates Association said in evidence to this Committee that it
strongly opposes the proposal, regarding it as a downgrading of the
magistrates court. The association understands that
the Crown Prosecution Service does not favour the proposal, either. It
would be interesting to hear from the Minister whether that is the
case. The concern is
that there will be an extension of the ability of non-legally qualified
staff to conduct trials in magistrates courts; proceedings in
magistrates courts in relation to certain offences that were previously
excluded from their remit, including serious cases triable on
indictment where the accused has elected to be tried by jury or where
the court has found that they should be tried by jury; applications for
preventative civil orders, and certain proceedings assigned to the
Director of Public Prosecutions by the Attorney-General under the
Prosecution of Offences Act
1985.
In essence, the
clause proposes that “not guilty” trials, including
trials for serious offences punishable by imprisonment, such as
assaults, public order, thefts, including shoplifting, and driving
offences, where defendants have chosen to be heard in front of the
magistrates court rather than the Crown court, should be conducted by
non-legally qualified Crown Prosecution Service staff. The effect of
this proposal will be to extend significantly the role of designated
caseworkers beyond the area in which they are currently
involved.
I concede
that there has already been an extension of the role of caseworkers.
The Narey report in 1997 recommended that
“Non-lawyers employed by
the CPS should be able to present uncontested cases in magistrates
courts”.
That
recommendation was followed through and we now see regularly in
magistrates courts caseworkers conducting straightforward, simple pleas
and other less serious matters. However, the clause seeks to extend
widely the ambit of those caseworkers. The concern is that that will
inevitably lead to a reduction in the legal input in criminal
proceedings. Trials of some serious offences could well be heard by lay
magistrates without a legally qualified representative for either the
defence or the prosecution.
The concern is that, given that
designated caseworkers are not necessarily solicitors, barristers or
legal executives, they are not subject to professional codes of
conduct, nor are they required to fulfil the important duties to the
court that those legal professionals fulfil. In addition, as officers
of the court, those professionals have that vital independence that the
designated caseworkers do not.
This is not a call for closed
shops for solicitors, barristers or legal executives themselves, and it
should not be seen in that light. It should be seen as an important
defence of the principle of high-quality justice in magistrates courts.
The caseworker’s role was recognised as limited and restricted
by the Crown Prosecution Service in its annual report, and in debates
in this and another place during the passage of the Crime and Disorder
Act 1998. Then, Lord Meston reminded
peers:
“The
Royal Commission report which led to the introduction of the Crown
Prosecution Service proposed that it should be set up in such a way as
to recognise the importance of independent legal expertise in the
decision to prosecute and to make the conduct of the prosecution the
responsibility of someone who is legally qualified.”
He continued, and made the point
clearly:
“The
decision whether to commence or to continue criminal proceedings
involves considerable responsibility, with implications for defendants,
victims and the courts. Uncontested criminal proceedings in the
magistrates’ courts are not necessarily trivial or
straightforward...the liberty of the individual can be at
risk”.
That is the
concern about the clause. We are dealing with the liberty of the
individual and with cases that victims want properly prosecuted, and
the concern is that justice is being short-changed.
The criticism, quite rightly,
is that the clause reveals a desire to get justice on the cheap. Where
is the evidence that we need the extension? It seems to be based on
financial reasons. The Government said that they intend to
achieve
“maximum
flexibility to allow optimisation of staff deployment across the
courts”,
and
“to improve the case-building
process with lawyers focused on sensitive, complex
casework”.
That is
management-speak. The Government talk about employment issues and the
organisation of staff deployment; there is nothing about justice, or
the importance of independent expertise when dealing with cases that
involve the liberty of the individual, or properly prosecuting
important cases for victims.
The measure seems to be a
cost-cutting exercise that will inevitably result in a loss of
confidence in the criminal justice system. There will be a greater risk
of error, which in this context could mean a poorly contested or
prosecuted case, to the detriment of victims and wider society. That
would have a profound impact. I say cost-cutting exercise but there is
no evidence of cost savings. It would be interesting to hear from the
Minister whether any such evidence exists, because the results of a
poorly prosecuted case could mean longer and more expensive trials in
which there is no legal expertise to deal with matters appropriately
and expeditiously. It might also lead to more appeals and increased
court and knock-on costs.
The concern is also about the
principle of equality of arms in the court process. The principle is
applied in the European convention on human rights, article 6, on fair
trials. Inherent in that is equality of arms when dealing with criminal
justice issues. The clause may result in inequality of arms, however,
with a defendant represented by a fully qualified barrister or
solicitor of great experience and expertise, while the Crown’s
case, representing the victim but on behalf of the Crown, is
represented by a designated caseworker.
There are many fine designated
caseworkers. I know and see them in Enfield
magistrates court, and they do a fine job in Narey courts, proceeding
with less serious cases. However, when they have to decide whether to
continue with a prosecution, when there is complexity, or when there
are issues about bail, they must defer to a Crown Prosecution Service
lawyer who will reach a decision using their
expertise, their duties to the court and their training, which has been
gained not over weeks, but over years, to ensure that justice is
properly served.
I do not wish to bang the drum
on behalf of the Bar Council, the Law Society or the Institute of Legal
Executives. I do wish to bang the drum for the victim
sitting at the back of a court or a member of the public watching a
court process. If they see someone who is no doubt doing the best that
they can but find out that that person does not have the same
qualification or experience, and is at a different level of expertise
from the lawyer representing the defence, even if there is no
determination about the legal niceties of equality of arms, surely they
will feel that justice is not being done and that justice is going
cheap. The Minister needs to tell us why the provision is necessary,
referring not just to cost savings but to why it is needed as a matter
of principle, considering the liberty of the individual and the proper
prosecution of cases on behalf of the victim and
society. Where
was the support in the consultation with interested organisations? The
Magistrates Association does not support it, and nor do the Law
Society, the Bar Council, ILEX or the Crown Prosecution Service. It is
important to find out. In The Times on 16 July, it was noted
that the Director of Public Prosecutions
had
“insisted that he
could not imagine any situation in which the case workers would be
entrusted to handle cases where a defendant might go to
jail.”
That will now be a
reality. Has the DPP’s view changed, and, if so,
why?
Mr.
Charles Walker (Broxbourne) (Con): I, too, am concerned
about the downgrading of the legal and judicial system. There are many
good Crown Prosecution Service lawyers out there who do a fantastic job
on behalf of their clients, but I am afraid that there are also some
fairly poor ones who do not provide adequate representation in a court
of law. When they fail to do so, they deny victims the justice that
they deserve; they deny the families of someone who has been killed in
a road accident, for example, the closure that they deserve. I am
concerned about anything that will create greater imbalance.
Given that
there is already a weakness among some CPS lawyers, having people who
are not even legally trained representing families in magistrates
courts will present a host of problems. One of the main problems will
be that if there has been a road traffic accident, for example, there
will invariably be an imbalance in representation. The victim, or the
family of someone killed in an accident, will invariably be the
economically weaker party. They will be represented by the CPS or one
of these paralegals, whereas the driver of the lorry or car will be
represented by their insurance company, which will not want to pay out
on any conviction. It is incumbent on all politicians to ensure that we
do not have justice on the cheap and that we ensure that the victims of
tragedy and crime get the best representation that we can possibly
provide. The clause may deny them that representation and thereby deny
them the justice that they invariably
deserve.
Mr.
Heath:
I do not want to repeat everything that has been
said adequately and fully by the hon. Members for Enfield, Southgate
and for Broxbourne, but I wish to express sympathy with their views. I
see the provision not as a trade union or closed shop matter, but as
something that affects the interests of justice in our courts
system.
It is
important that we ensure that all sides of a case—both the
prosecution and the defence—are properly represented in court.
There is at least a
suspicion—I would say a real doubt—about whether that can
be the case if relatively unqualified people represent the prosecution
in an opposed case. Completely different questions apply in an
uncontested case, but in a contested case it is innately wrong that we
should put ourselves in such a position simply out of economic
expediency, which can be the only argument in favour of the
measure. 3.30
pm
Maria
Eagle:
I am well aware of the strong feelings that the
clause has excited, not just in the parties and in members of the
Committee but in those outside who made representations, not least the
legal profession, but also others. We heard evidence from the
Magistrates Association. I understand the concern that has been
expressed.
It may be
helpful if I set out what clause 58 does and does not
do, then deal with some of the points that have been raised. It amends
the Prosecution of Offences Act 1985 to remove certain statutory
exceptions that limit the types of cases and hearings in which Crown
Prosecution Service designated caseworkers may be the advocate. The
purpose of extending the designated caseworker remit is to enable them
to conduct a wider range of proceedings before the magistrates
courts—including, as hon. Members said, in summary
trials.
There is no
doubt that a balance has to be struck between efficiency and
effectiveness in dealing with straightforward advocacy in the
magistrates courts and fully protecting the rights of victims who are
often represented by CPS lawyers and designated caseworkers—a
point raised by hon. Members—and ensuring that the CPS does as
effective a job as it can and obtains proper value for
taxpayers’ money. There is always a balance to be struck in such
matters, and there may be a slight disagreement about where that
balance ought to be struck.
Mr.
Walker:
In some cases prosecuted by the CPS, the family of
the victim may feel that the lawyer has not prosecuted the case
effectively or professionally. What options are open to the family to
raise their concerns with the Home Office or the
CPS?
Maria
Eagle:
I think that all of us who are or have been members
of the legal profession would say that often, particularly when a case
is lost, that clients are not happy with the advocacy in contested
trials, whether of a barrister, a solicitor or—if the clause is
accepted—a designated caseworker. However, the hon. Gentleman
will be aware that there is no such thing as a negligence claim in
respect of court advocacy. Qualified legal staff have professional
rules and obligations. That brings me back to the important point
raised by the hon. Member for Enfield, Southgate about
regulation.
Other
than making complaints, it is not possible to take negligence action
against an advocate for not putting a case well enough. Many of us who
have practised in the law have come across clients
who would have done that if it had been possible, because they were not
satisfied with what the barrister or solicitor had done, or with the
way in which the case was presented
or prepared. Of course, judicial proceedings are for the judge, and at
the end of the day they have to be accepted or
appealed.
Mr.
Walker:
There are, as I said, good CPS lawyers, but all
professions have people of variable quality—even our own
profession or calling of politics. What mechanisms does the CPS have in
place to monitor the performance of its barristers and solicitors to
ensure that they are operating to the highest professional
standards?
Maria
Eagle:
I shall comment on the current internal procedures
of the CPS to ensure proper standards in respect of designated
caseworkers. They would apply also in respect of the
extension.
The
hon. Member for Enfield, Southgate said that the CPS
and the DDP do not support change. I have a letter from the DDP dated 4
October to Sally Dickinson, the secretary of the Magistrates
Association. She
said:
“In
relation to Clause 58 of the Bill, you outline your opposition to the
proposal and state, ‘We understand that the CPS does not favour
this’. This assertion is not correct. The CPS and the previous
Attorney General have sought this legislative change and have worked
closely with the Ministry of Justice and Parliamentary Counsel in the
drafting of the clause. I hope that I have now clarified the point and
would ask that you amend your published response to reflect the CPS
position.”
It is not the
case that the CPS does not support the change. It
does.
Mr.
Burrowes:
I am grateful for that. I was seeking
clarification on behalf of the Magistrates Association. In some ways
that is a surprise. One would have imagined it to be toeing the line in
supporting the Bill. When the DPP wrote to The Times to insist
that he could not imagine a situation in which caseworkers could be
entrusted to handle cases where a defendant might go to
jail—
Maria
Eagle:
The DPP did not write to The Times. He was
quoted in The Times, but not necessarily accurately. He
certainly has not written to The Times to say
that.
Mr.
Burrowes:
To clarify, it was noted in The Times
that that is what he said. Clearly the position is that under the
clause caseworkers would be entrusted to handle cases in which a
defendant might go to
jail.
Maria
Eagle:
My understanding is that the DPP certainly did not
write to The Times and say what the hon. Gentleman suggests. We
all know of instances where quotes in newspapers have not been entirely
accurate. That is as much as I can say in respect of this. That is as
far as my knowledge goes. I would be happy to come back if I have
misled the Committee. I think that that is
accurate.
Mr.
Burrowes:
If the quote is inaccurate, then that is so. But
caseworkers would nevertheless be entrusted to handle cases where a
defendant might go to jail.
Maria
Eagle:
It certainly is so in respect of the current
proposal, where we are looking at contested trials within the
magistrates court jurisdiction, which includes penalties of up to six
months’ imprisonment. That certainly follows. It might help the
Committee if I just say a little about the intention in all of this.
The Committee may then agree or disagree on whether it is a good idea,
but it might illuminate the discussion if I set that
out.
The
intention of the Crown Prosecution Service is to adopt a gradualist
approach in deploying designated caseworkers to prosecute summary
trials. Indeed, the DPP will, through the exercise of his powers under
section 7A of the Prosecution of Offences Act 1985,
impose internal restrictions that will govern the nature of the trials
that designated caseworkers may be asked to undertake. I can also
assure the Committee that only those designated caseworkers who have
undergone an externally assessed training course will be permitted to
appear before the magistrates courts and prosecute
trials.
The clause
will also enable designated caseworkers to appear before the
magistrates court and have conduct of proceedings that relate to
offences that are indictable only. Such proceedings would include those
under section 6(2) of the Magistrates’ Courts Act 1980, which
are often referred to colloquially before the courts as “paper
committals” and are uncontested proceedings. The Committee may
appreciate that these are now, in essence, more an administrative
function but at present it is seen as a limitation that undermines the
effective and efficient deployment of designated
caseworkers.
Similarly,
the clause will enable designated caseworkers to appear before the
court for the administrative exercise of “sending” a
defendant for trial to the Crown court. These provisions under section
51 of the Crime and Disorder Act 1988 are, again, uncontested and
administrative in nature, and in the majority of instances this is not
an effective use of a Crown prosecutor. The clause would also build on
the experience of designated caseworkers who currently undertake bail
applications on summary and either-way offences by extending their
powers to include offences that are indictable only.
This amendment is necessary to
enable designated caseworkers to appear in committal proceedings and
“sending” proceedings where consideration of bail is a
prerequisite. The clause will also enable a designated caseworker to
undertake hearings that are referred to as “preventative civil
orders”. As the hon. Gentleman hon. Member for Enfield,
Southgate said, there are many ancillary civil orders that may now be
made by criminal courts, and not always where there is a criminal
conviction. These hearings take place either after the verdict of the
court has been announced, were the verdict to be “not
guilty”, or, when there is a conviction once sentence has been
passed. These hearings, such as those for antisocial behaviour orders
or those for restraining orders, are not classed as criminal
proceedings. They are, in fact, civil proceedings and at present a
designated caseworker may appear before magistrates courts only in
criminal
proceedings.
That is
the extent of the clause. There is also the relatively rare case in
which the clause will permit a designated caseworker to appear in
proceedings where there is a notice of transfer issue under either
section 4
of the Criminal Justice Act 1987 or section 53 of the Criminal Justice
Act 1991. These matters are ordinarily now a rarity before the courts,
but the clause would extend the power of designated caseworkers to
appear in respect of those matters, too. I wanted to get on the record
what the clause is
proposing.
Mr.
Nick Hurd (Ruislip-Northwood) (Con): I
listened very carefully the Minister, and this is one of the clauses in
respect of which my constituents would have most difficulty in
understanding the Government’s objectives. The Minister talked
earlier about the need for a balance, and conceded that cost was
clearly a consideration in those objectives. Will she share with the
Committee exactly what cost savings the Government expect to make from
the move, and say what evaluation has been made in respect of public
opinion and the potential cost to the credibility of the criminal
justice
system?
Maria
Eagle:
I am speaking from relatively recent memory, but if
the hon. Gentleman looks at the explanatory notes, he will see that a
cost saving of £5 million a year is
anticipated.
That we
need our public services to be as efficient as possible is one
consideration. Having said that, I understand the concerns that have
been expressed in Committee, particularly by those hon. Members who
have spoken in this debate. We want to reach as much of a consensus as
possible with those who have expressed worries. Discussions of an
exploratory nature are taking place with the Institute of Legal
Executives regarding possible membership of that institute for
designated caseworkers and the CPS training programme for designated
caseworkers.
Mr.
Hurd:
Having dealt so explicitly with the first half of my
question, can the hon. Lady answer the second part about the attitudes
of members of the public whom we represent? At the moment, they have a
fragile sense of confidence in the criminal justice system. What tests
of public opinion have been carried out about this dumbing-down of
justice?
Maria
Eagle:
I shall be waved at if I am wrong, but as far as I
am aware there have been no consultations with members of the public.
We would not necessarily expect that at this stage. We certainly have
not done any opinion polling or work of that nature in respect of the
clause.
Mr.
Philip Hollobone (Kettering) (Con): That is not entirely
surprising. If we set that answer in context, does it not reflect the
Government’s policy in many different areas? In our classrooms,
teachers are
being—
The
Chairman:
Order. We are departing from the business of the
Committee.
Maria
Eagle:
I have tried to be open with the Committee about
the fact that I understand fully the concerns that have been expressed.
We are seeking an agreed way through with those who have highlighted
their worries, particularly the legal profession. It is not our
intention to deskill to the extent that people cannot have confidence
in the workings of those who present cases in the magistrates
court.
I shall reflect on the concerns
that have been expressed and perhaps come back at the remaining stages
of the Bill with some answers for those hon. Members who have drawn
them to my attention. We do not want to put the provision in place in
the teeth of the opposition of everyone, or of good sense; we want to
take it forward correctly. We want to achieve a proper balance between
that and allaying the concerns that have been expressed, particularly
by the legal profession, about the implications of such a provision. On
that basis, I hope that the Committee will allow the clause to stand
part of the
Bill.
Mr.
Burrowes:
The Opposition are not convinced by the
assurances that there might be some negotiations with ILEX about
training, quality or representation. We have already debated the
fundamental principle that is at stake, the heart of which is
that—given the percentage of criminal cases that might take
place in the magistrates court—the majority of the public will
be worried that the clause will lead to cases being delegated to
laypeople who are not properly qualified to carry out such tasks,
however sincerely they perform them. In the interests of confidence in
the criminal justice system, I invite the Committee to vote against
clause stand
part.
3.45
pm
Question
put, That the clause stand part of the
Bill:—
The
Committee divided: Ayes 9, Noes
6.
Division
No.
3
]
Question
accordingly agreed to.
Clause 58
ordered to
stand part of the
Bill.
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