Examination of Witnesses (Question Numbers
1-19)
NICOLA PADFIELD
AND ROBIN
WHITE
20 JANUARY 2009
Q1 Chairman: Nicola Padfield and Robin
White, thank you very much for coming to help us today. We invite
you to give a short introductory comment because you are not hostile
witnesses but people who have come to help us with your better
understanding of how the system works including, in Robin White's
case, the comparative features of the English and Scottish systems.
If you would like to take up the invitation to make a brief opening
comment please do. I need to warn you that we expect a division
at five o'clock, so effectively that sets a time limit on this
particular part of our session.
Nicola Padfield: I shall be very
brief anyhow. Thank you for inviting me here today. I imagine
that you have all read my brief written evidence to the Committee.
I thought I would just remind you briefly of what I wrote there.
By way of introduction, in part I do not consider myself to be
an academic expert in this area specifically. I am an academic
interested in criminal justice. My particular research of recent
years has been in sentencing and early release, but I am also
a Recorder in the Crown Court and would like to think that my
interest overlaps between what is law in theory and law in practice
and maybe I have something to contribute there. I also ought to
state that I am a part-time legal adviser in a small way to the
independent Hate Crime Scrutiny Panel set up by Cambridge CPS
which is composed of representatives of minority communities who
review CPS files. In my written evidence I highlighted certain
key issues which I think are important for this Committee. I certainly
think it is very exciting that this Committee is looking at the
subject now because the CPS is still very young. It's very young,
in the context of the English and Welsh criminal justice systems.
It had a very rocky start. It was badly under-financed, badly
set up. Its first 10 years must have been extraordinarily difficult
and in the past 10 years there has been enormous improvement in
all sorts of ways, but it does not mean that life is perfect.
Perhaps the most interesting questions are concerned with the
way in which the CPS relates to other parts of the criminal justice
system. As it grows up and becomes a more powerful player in the
criminal justice system the rub-on effects, and indeed perhaps
the unintended consequences, need to be thought about. I think
I will stop there.
Q2 Chairman: Thank you very much
indeed. I have forgotten which of the two papers, yours or Robin
White's, brought home to us that the notion that the police evolved
as a form of private prosecutor provides such a sharp contrast
with the Scottish system. Indeed, prosecution has always been
the role of the Crown. I wonder whether you would like to enlarge
on that briefly.
Robin White: Do you want me to
make a brief introduction?
Q3 Chairman: Yes, please do so.
Robin White: I am Robin White,
a senior lecturer at the University of Dundee Law School and I
have been looking at some criminal justice issues in the past
few years including some prosecution issues and comparative aspects.
It seems to me that intra-UK comparisons are, to be honest, frequently
perfunctory. People look at Germany, France, the United States,
Israel and Malaysia—all sorts of exotic places—whereas
within the same state there are three prosecution systems et cetera.
There are two particular points that I want to address. One is
the comparative aspect, specifically Anglo-Scottish, and I am
very happy to answer questions on that. Just the same, I shall
say a bit more about it in a moment. The other matter is the rise
of alternatives to prosecution which strike me as a rather worrying
trend. To enlarge a little on both points, as to Anglo-Scottish
comparisons I have quoted Lord Justice Auld as saying, a few years
ago to be fair, that the CPS had still to fulfil its proper role
which should be closer to the more highly regarded procurator
fiscal in Scotland which gives me some power to enlarge upon that.
There are numerous differences between the two systems. In my
written evidence I included as an appendix a brief overview and
comparison of the two systems on which I am happy to enlarge if
necessary. It struck me that it would be quite useful to look
at four particular points, one of which you have already mentioned,
that is to say the relative role of the police in England and
Wales. The prosecutors have been, to use a phrase, handmaidens
of the police. In Scotland in effect the reverse is true. The
second point is prosecutorial monopoly. There is to all intents
and purposes a monopoly by the Crown Office and Procurator Fiscal
Service of all prosecutions in Scotland; there is not a multiplicity
of agencies. The third matter is the professional prosecution
of crime. In Scotland crime at all levels is professionally prosecuted
in the sense that what I call short career prosecutors do it.
The fourth one is perhaps a recent development: the depoliticisation
of law officers, as I have called it; that is to say, in the past
few years in Scotland both law officers are career prosecutors
and not lawyer politicians. I should be happy to enlarge on all
those things in the context of a Scottish comparison. Briefly,
the other general area that I should like to mention is the rise
of certain alternatives to prosecution. I am not alone in saying
that this is the most important change in criminal procedure possibly
in all parts of the UK for the past 100 years or more, but it
seems to be largely unnoticed. What I am referring to is the expansion
particularly of conditional offers, that is to say effectively
where an enforcement agency says that if a person pays a nominated
penalty it will not prosecute. Thus, the courts are avoided. I
have a number of specific concerns about that. Perhaps the main
one is that this is largely an unnoticed and enormous change in
the way the criminal justice system operates. I have mentioned
conditional offers specifically. There is a further stage for
which there is no official term, as it were, but I use the expression
"decriminalisation". The phrase "civil penalties"
is used in this regard, but there is no consistent terminology.
The significance of those is that with conditional offers at least
there is an offence. It is a question of how the offence is dealt
with as an alternative to the court. With decriminalisation and
civil penalties the criminal justice system is in effect entirely
removed. You have the secretary of state or local authority imposing
a penalty without being obliged to use any of the protections
of criminal procedure because it is called a civil penalty. I
am in the middle of writing an article. If you will excuse the
pretentiousness of it, to give you a flavour of it the article
is entitled "Civil Penalties Oxymoron: Chimera and Stealth
Sanction"; in other words, it is a contradiction in terms.
It is a monster and an attempt to sneak up on people with a penalty
which pretends not to be one.
Q4 Chairman: Is the situation in
that respect any different in Scotland from the position in England?
Robin White: Broadly speaking,
I think not.
Q5 Julie Morgan: Can Nicola Padfield
say a little more about what she describes as informal plea-bargaining,
because I think that this concept outside the system is a bit
of a mystery?
Nicola Padfield: One of the reasons
we say we really do not do plea-bargaining in this country is
that traditionally we have not involved the judge in the process,
but I am sure that for ever a defence lawyer has rung up whoever
is in charge of the prosecution and said that his or her client
would plead guilty to a lesser charge if the higher charge was
dropped. Informal negotiation has gone on for ever. What we are
moving towards very fast is a much more formal system of plea
negotiation and plea bargaining which I suspect will more often
be initiated by the prosecution than the defence which I think
shifts the balance of power in a very important way. I do not
know whether you want me to say why I am very nervous about where
we are going.
Q6 Julie Morgan: I was going to ask
for your views on it.
Nicola Padfield: In this area
most of my views are tentative because we do not have a lot of
evidence. The evidence we have often comes from other jurisdictions.
I completely agree with the point that we do not look often enough
at Scotland for our comparisons. Too often the comparisons are
with the United States where in terms of plea-bargaining we see
some very worrying things. The most obvious place for an English
lawyer to look at the moment is the decision of the House of Lords
last summer on the extradition of Gary McKinnon. There we see
a very precise and practical example of the enormous power of
American prosecutors in offering a bargain which involves not
only a much shorter sentence if the subject pleads guilty but
also the terms on which the sentence will be served, what sort
of prison involved and the likelihood that the person will be
sent home to serve the sentence. To my mind, that is an extraordinarily
worrying world to be slipping towards. I do not think the prosecutor
of the CPS within our system should be encouraged to develop that
sort of power in the plea-bargaining process. My view is that
we should stop and think before we slide that way.
Q7 Julie Morgan: But there are other
practical benefits to plea-bargaining and it has always gone on?
Nicola Padfield: There are huge
practical benefits to the system. There are huge practical advantages
to prosecutors and there may well be huge practical advantages
to suspects, but it does depend on two very important things.
One is that suspects should be well advised because it is very
easy to agree to something which is not in your interest if you
do not understand what is going on. Again, there is evidence from
the United States that the power of the prosecutor in relation
to some suspects is accepted as a fact of life which is a subject
of concern. Then, of course, the public interest does not necessarily
accord with the interest of the prosecutor or the suspect. For
my part I have perhaps a slightly old-fashioned trust in open
justice. I think that such decisions should be made in an open
court where at least the public is able to see what bargain has
been agreed. The trouble with plea-bargaining is that too much
of the decision-making is likely to be made out of sight.
Q8 Julie Morgan: Would you welcome
a much more transparent way of doing it? Members of the public
who have spoken to me about it are often mystified as to why things
have gone in a certain way. Do you believe that plea-bargaining
should be public?
Nicola Padfield: Much more obviously
public, yes.
Q9 Julie Morgan: Robin White, do
you want to comment?
Robin White: First, I believe
that plea-bargaining is inevitable. If you have an adversarial
system where two sides locked in battle it is inevitable that
some people will plead guilty and the system depends on that.
Some people will plead guilty to a charge which in some sense
has been negotiated. There is an enormous range of situations
in which it occurs. At one end when somebody is to be charged
with a particular offence very early on the defence agent will
contact the prosecutor and say that certain witnesses may be found
to be a bit dodgy but his client will plead to such and such.
At the other end of the spectrum, just before the court convenes
the fiscal is sitting there with about six trials to run and the
defence agent will pop round and say that the individual has two
charges and if one of them is dropped he will get him to plead
to two. That is quite a range. Another point to look at is an
analysis of the nature of plea-bargaining. It is probably orthodox
to say that there is more than one form of it. The terminology
varies, but in the case of sentence bargaining from the accused's
point of view the great advantage is a lesser sentence. Sentence
bargaining means that the sentence is formally less than it would
otherwise have been. I think that must be trilateral in the sense
that you have the prosecution, the defence and judge involved.
As I understand it, one difference is that sentence bargaining
happens in England but it does not appear to have occurred in
Scotland at all. The second matter is charge bargaining; in other
words, perhaps one charge is dropped for a guilty plea; and there
is fact bargaining where the charge remains the same, or possibly
there is something between the two. Perhaps the word "repeatedly"
is dropped from "repeatedly stabbed", or there is agreement
that the facts narrated by the prosecutor are to be put in a particular
way. It is quite useful to analyse the three. I agree that formality
appears to be a good idea. Again, I would very much agree that
open court is better than behind closed doors. My difficulty—perhaps
this is simple ignorance on my part—is how on earth sentence
bargaining in particular occurs. If at a very early stage a judge
is asked what he would impose on this or that occasion I am not
sure how that judge can answer sensibly when he or she has not
heard any plea in mitigation. It is very much in the dark.
Q10 Alun Michael: First, you referred
to the need for greater public transparency as to what is happening.
Is it not true that very often neither the defendant nor those
affected, the victim or family, has much clue as to what is going
on? Therefore, it is not just a question of public transparency,
is it?
Nicola Padfield: I absolutely
agree with you if what you are saying is that everyone needs better
to understand the process. Public education about the criminal
justice system is to be welcomed.
Q11 Alun Michael: Second, you referred
a process that generally took place without the judge or magistrate
being involved. That can result in the court being constrained,
can it not, because if a particular charge is ruled out and lesser
charges are left in and the evidence unfolds in such a way to
suggest that perhaps the higher charge is the one that ought to
have been pursued it can be very frustrating for the court as
well?
Nicola Padfield: The Crown Prosecution
Service obviously has to make extraordinarily difficult judgments
in relation to costs and the trauma to witnesses, and all sorts
of issues come into play to affect the decision to downgrade a
charge in response to a guilty plea. I think we ought to undertake
a lot more research—I would say that, wouldn't I—into
the extent to which overcharging happens in order to allow for
greater negotiation. I think the extent to which we really do
not know how much this happens in practice is quite surprising.
Q12 Alun Michael: But in respect
of both forms of bargaining to which you referred a moment ago
something is decided in advance of the evidence being tested and
therefore you are in danger of trying to negotiate on the basis
of justice by numbers rather than evidence?
Nicola Padfield: And the discretion
of the judge is inevitably significantly curtailed.
Q13 Alun Michael: We are talking
here about transparency in a particular way. I want to ask about
transparency in the taking of decisions generally. What do you
see as the role of the inspectorate in this? Is there a greater
role here for the inspectorate in ensuring there is such transparency?
Nicola Padfield: I believe your
Committee, certainly the House, explored that in detail last year
with a proposal to fuse the criminal justice inspectorates. I
for one am very glad that it did not happen because it seemed
to me that the different inspectorates had very different functions.
At the moment the inspectorate of the CPS has very much an inspectorate
of process role and is hugely useful in that role. Whether it
should be widened further or there should be other bodies dealing
with other areas I am not sure. One area that is quite difficult
to explore and to learn about from different bodies' websites
is complaints against the CPS. Who deals with complaints against
the CPS? Should that be for an inspectorate or should it be for
a separate complaints body? Those are difficult issues to which
I do not have an answer. Certainly, it is worth having an inspectorate
but whether it should be widened I am not sure.
Q14 Alun Michael: Robin White, do
you have a view on that?
Robin White: Perhaps I may make
a couple of points particularly in relation to your first question.
You mentioned over-charging.
Q15 Alun Michael: Or under-charging.
Robin White: Yes, but I should
like to make a point about over-charging. Perhaps here I may put
in a word for the Scottish system. One of the problems with over-charging,
as I understand it, is to do with what is called prosecution momentum
or optimism. Insofar as the police initiate things they may get
the bit between their teeth and the result is over-charging. The
CPS, which perhaps is still the handmaiden to the police, may
have difficulty in stopping the horse from running. The great
advantage of an entirely separate system where the police are
subordinate to the prosecutor is that there is a genuine second
look at it. These days the fiscal sitting in his or her office
gets on screen the details of a particular matter. There are no
police about. I find the idea of co-location where prosecutors
go to the police slightly strange. It seems to me that it ought
to be the other way round. The prosecutor is the prosecutor and
is the one to decide. The police provide the information and the
prosecutor decides on the matter. Therefore, over-charging is
largely avoided because of the system. You also mentioned victims.
I am a little concerned about the role of victims in the criminal
justice situation perhaps in a slightly unusual way. I find there
is an enormous amount of confusion often demonstrated by the conjunction
of victims and witnesses as if it is the same thing. One form
of prosecutor independence in the public interest is independence
from the victim. Whatever "in the public interest" means—it
is on occasion a very useful fig leaf—prosecution by a public
prosecutor is not necessarily in the interests of the victim.
It may or may not be but the point of the criminal justice system
is to identify who did the wrong thing and make that individual
subject to a penalty.
Q16 Alun Michael: I ought to make
clear that my question was about transparency rather than the
interests of different parties and that at least the victims or
their families ought to be clear what is happening.
Robin White: Yes.
Q17 Chairman: I should like to clarify
one point. Just how does the relationship between the fiscal and
the police work in the Scottish system? You regarded co-location
as a bit uncomfortable.
Robin White: In the sense it is
used in England and Wales, yes.
Q18 Chairman: But to what extent
is the fiscal actually saying at a very early stage that a particular
witness ought to be interviewed or further inquiries should be
made to see whether a witness can testify to this or that, or
that time is being wasted by approaching a particular witness
or looking for a particular kind of forensic evidence?
Robin White: That is very much
what the fiscal does. These days it is done on screen. Take a
custody case. I think the normal practice in any office is for
those fiscals who are not appearing in court on a particular day
to mark cases. They all turn up at nine o'clock in a particular
room and on screen are however many custody cases there are. They
see the number of people arrested in the past 24 hours. Obviously,
this is a piece of software with a particular format, but the
essence of it is a bit of text, for example that a search warrant
was effected at two o'clock that morning and evidence of drugs,
such as scales, has been found. Two people were there and various
items were seized. They think that certain forensic tests are
needed, that another witness or two may be needed and so on. What
does the fiscal do? It is very much de novo; in other words,
the fiscal makes perhaps a slightly complicated decision. Does
there appear to be an offence at all? The answer may be no and
the police have wasted their time; or there may be insufficient
evidence, and so on. Yes, the fiscal certainly can, and from time
to time does, require the police to interview new people, carry
out searches and forensic tests and so on.
Q19 Alun Michael: That implies the
power of direction in the way we discussed last week?
Robin White: Yes, that is absolutely
so. As an appendix to my written evidence, I included various
common law and statutory authorities which make it very plain
that the fiscal is in charge; he tells the police what to do.
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