Examination of Witnesses (Question Numbers
20-36)
NICOLA PADFIELD
AND ROBIN
WHITE
20 JANUARY 2009
Q20 Alun Michael: I put a question
to you, Nicola Padfield. In your written submission you indicated
that the desire for improved efficiency in the CPS must not lead
over human rights and due process. It seems quite reasonable as
a statement, but I have some suspicions about it. "Due process"
is a polite term for the incompetence, inefficiency and delay
in the system that we have all experienced. To explain why I put
it in that way, particularly in relation to youth justice I am
a great believer in the principle that justice delayed is justice
denied. Delay does not do any good to anybody involved in the
system including the defendant in the long term. The only person
it helps is perhaps the less scrupulous defence solicitor. Why
do you think there is a tension between improved efficiency and
human rights and due process? They are not necessarily in opposition
or tension, are they?
Nicola Padfield: Of course they
are not necessarily in opposition. Perhaps I may teasingly take
issue with your description of the defence solicitor who is the
beneficiary of delay. I am not sure that nowadays legal aid encourages
a defence solicitor to delay.
Q21 Alun Michael: I agree that things
have improved since my time.
Nicola Padfield: There are good
as well as bad reasons for delay. My concern is with any agenda
which is clearly led by key performance indicators which matter
to the extent they do in our current managerialist culture, if
you like. There can be a pressure on parties to comply with key
performance indicators to an extent that can be unhealthy. I also
said in my evidence—you may not have welcomed the way I
put it—that I did not like the definition of "unsuccessful
outcomes". Perhaps I may say a bit more about that.
Q22 Alun Michael: I think we are
reasonably happy with that; that is a fair point. But if one takes
youth justice in the UK the ability to squeeze things down from
141 days to fewer than 72 suggests there was a hell of a lot of
unnecessary delay to be squeezed out of the system.
Nicola Padfield: I have no doubt
that there is a lot of unnecessary delay. Sometimes a delay may
be useful in an individual case.
Q23 Alun Michael: In an individual
case, yes, but I just want to understand the way you put the opposition
of the two elements. Can you give an example of a situation in
which that has arisen? My concern is that you put it as "managerialist".
Quantifying and measuring what people do has had considerable
beneficial effects in driving out a lot of the inexcusable delays
that existed in parts of the court system and still exist in some
of them. What is the real fear that underlies that comment?
Nicola Padfield: The issue could
be illustrated by way of a whole number of examples.
Q24 Alun Michael: One or two would
be fine.
Nicola Padfield: I will start
with the processes that are economic, that is, saving money by
using CPS as presenters of cases and not simply as objective assessors
of police evidence. I think we see quite a lot of problems developing
because of the great priority given to the increase in the number
of magistrates court sessions covered by associate prosecutors
or, even more, the increase in the percentage of advocacy dealt
with in house leads to a lot of problems.
Q25 Alun Michael: Can you give us
an illustration because that is a bit vague?
Nicola Padfield: If you go to
a busy crown court today which has a morning of plea and case
management hearings you will find that due to recent changes in
the way legal aid is done the trial barrister is likely to be
there representing the defence but the person representing the
Crown Prosecution Service is a very hard-pressed CPS advocate
dealing with all the PCMHs that morning. He or she may well not
be the trial counsel. We see delays slipping in and there are
lots of issues.
Q26 Chairman: Therefore, the prosecution
is at a disadvantage, not an advantage?
Nicola Padfield: The prosecution
which is badly prepared because of the pressure on them to be
quick and cheap leads to increasing problems. One issue that I
should very much like to bring to the attention of this Committee
is a very good article by Judge Denyer.
Chairman: If you provide the reference
we can look at it. I must move the questioning on; otherwise,
we shall not be able to cover some of the issues that Dr Whitehead
wants to raise.
Q27 Alun Michael: Perhaps I may say
that at the moment I am convinced there is a degree of pressure
on people—there always is—in the period running up
to proceedings in court.
Nicola Padfield: There are disclosure
issues, meeting time limits and all sorts of matters and they
are not just defence problems but prosecution problems that cause
a lot of delay. That is an article by Judge Denyer in 2008 Criminal
Law Review.[1]
Chairman: If you give the reference we
will look at it. I am sorry to rush things.
Q28 Alun Michael: If any examples
can be sent to us separately that will be helpful.
Nicola Padfield: I shall take
that up.
Q29 Dr Whitehead: Both of you in
your written evidence to us raise the issue of conditional cautions
and in Scotland conditional offers and decriminalisation. You
point out that in effect that is a punishment without prosecution.
Robin White: I should say it is
not my phrase; it is a sheriff's phrase.
Q30 Dr Whitehead: In particular Nicola
Padfield raises the issue of the extent to which sometimes, for
example, a fine or a conditional caution may exceed what would
have happened in the magistrates court anyway and also perhaps
the lack of understanding of what happens should a conditional
caution be imposed. Can you expand on your concerns on those issues
in relation to conditional cautions?
Nicola Padfield: I think the evidence
is clearer in relation to fixed penalty notices. Often the fixed
penalty is higher than the defendant would receive in the equivalent
case going to court. That is clear in, for example, the Explanatory
Memorandum to the latest increase in the number of offences with
fixed penalty notices. We are told that in the case of the possession
of cannabis when no equivalent offence exists the penalty amount
reflects the average fine given out by a magistrates court. If
it is the average fine, it means that a lot of people are getting
more now than they would have received had they gone to a magistrates
court. There is evidence from the small amount of work which has
been done on PNDs. There is very real concern that poorer families
maybe losing out. I have here another piece of research which
suggests that some young people and police officers feel that
the scheme may unfairly discriminate against poorer families.[2]
We do not yet know a great deal about conditional cautions, but
there must be a concern that they punish people more than they
would have been had they been to court. The potential implication
of that is something we must monitor. That is why openness is
very important. I am not saying that it is necessarily a problem
in all cases, but the potential of these non-court disposals to
punish people more than they would be punished had they had a
court disposal is a very real fear. As to net-widening possibilities,
do not misunderstand me: I think it is extremely useful to have
in place systems that allow low-level public disorder to be dealt
with without prosecutions as long as it is not being used for
cases which would otherwise in court be dealt with perhaps more
leniently. It is providing an alternative system of criminal justice.
The other point that we have not adequately noticed is that the
numbers are enormous. I have brought along the latest criminal
statistics published this year. The numbers of cautions and PNDs,
fixed penalty notices, are enormous and I am not sure that that
has been adequately digested.
Q31 Dr Whitehead: But in pointing to
that is it implicit that there is a substantial case for better
regulation of the relationship of various fines or punishments
following fixed penalty and conditional caution arrangements or
that the system itself appears to have run away with a particular
notion of how these things are done and therefore itself might
be circumscribed to a much greater extent? In a sense you may
say there could be two routes: one is to regularise and regulate
that new system and the other is that the new system itself raises
a number of question marks such that one ought to rein it back?
Nicola Padfield: Of course, it
is more efficient to have prosecutors' fines however they are,
whatever "efficient" means. Whether or not it is more
effective depends entirely on what one seeks to effect. I really
cannot give answers. I am really asking questions and am very
diffident in anything that I say today. But the question is that
we have drifted towards a huge increase in non-court disposals
because it is cheaper. Have we adequately thought through whether
it is better? I also say in my evidence that I am an old-fashioned
fan of magistrates courts, public decision-making by volunteer
local magistrates. Magistrates' court business has gone down enormously
and I question whether that is necessarily a good thing. Local
justice by local magistrates seems to me to be a very useful criminal
justice process and one that at the moment is being squeezed.
Q32 Mr Tyrie: You are a recorder.
Is it not correct that generally recorders process these cases
much faster than magistrates? Certainly, the figures for London
support that. But the appeal rate and successful overturning of
recorders' decisions is lower.
Nicola Padfield: I think you are
talking about District Judges' (Magistrates Court), in old language,
the stipendiary magistrates. The stipes definitely have the reputation
you say. I am a Recorder and a Recorder is a part-time circuit
judge in the Crown Court and is a rather different animal, if
I may put it that way.
Q33 Mr Tyrie: But the point I make
stands, does it not? On the whole, the amateurs end up making
more mistakes than the professionals?
Nicola Padfield: I would need
to look that up to know whether that is correct. Certainly, the
district judges' courts tend to be much faster. Whether or not
there are fewer appeals I cannot tell you off the top of my head.
Q34 Chairman: Nicola Padfield, do
you have a view about the prosecuting monopoly that exists in
Scotland? Are there serious disadvantages in having a number of
government agencies, the Serious Fraud Office, HM Revenue and
Customs and even the Television Licensing Authority in England
and Wales to carry out prosecutions?
Nicola Padfield: I think we are
now at the stage when we can ask the question which you ask. Certainly,
in the first 15 years or so in the CPS's life it was not a body
in which there was enough confidence that it could take on the
big umbrella role. Before it was invited to take on the big umbrella
role we have to think about the extraordinarily different prosecution
policies of different bodies. If you look at tax bodies, compliance
policies in environmental crimes there are some very interesting
differences between different bodies as to whether they seek to
prosecute or negotiate satisfactory results. Again, it raises
all the questions that we are discussing today about negotiated
justice and what the end product is. Do we want people to be able
to pay up rather than be prosecuted? If you look across at all
the non-CPS agencies the policies are very different.
Q35 Chairman: In part does that not
reflect the field in which they are working? For example, in tax
cases getting the money in is the primary objective unless clearly
fraudulent activity going on, whereas in, say, smuggling cases
you want to lock up smugglers?
Nicola Padfield: Those are big
questions that need to be discussed, are they not? It is not obvious
to me that you necessarily want to lock up smugglers more than
you want to lock up tax fraudsters. Why?
Chairman: I excluded fraud.
Q36 Dr Whitehead: Nicola Padfield,
I want to turn briefly to the other point you make about civil
protection orders such as ASBOs, the more recent serious crime
prevention orders under the Serious Crime Act 2007 and violent
offender orders. You also point to the inconsistency of rules
and sanctions in those protection orders. Is that an area that
you also think may benefit from better regulation or is it one
where, as you suggest in evidence, they are parliamentary knee
jerk responses and perhaps Parliament ought to "unjerk"
its knee?
Nicola Padfield: The law is fantastically
complicated and in quite a lot of the areas you mention it is
almost impossible to understand the detail, complexity and overlap.
Certainly, complicated law wastes money. Robin White mentioned
in his presentation de-criminalisation and what you raise here
is de-criminalisation in a very interesting way in relation to
the civil penalties and orders you mention. Whether or not they
have been a good thing is a moot point. When ASBOs were introduced
wishy-washy liberal academics like myself were deeply opposed
to them because we were told they were dealing with sub-criminal
matters and since it is difficult to imagine sub-criminal matters,
everybody was very concerned. They have been used not for sub-criminal
but serious criminal matters in order, you might say, to avoid
the problems of the due process safeguards of the criminal justice
system. I think ASBOs are still problematic when they are an alternative.
I do not oppose them at all as a criminal sanction; I think they
have been very useful as a sentencing option available to the
courts, but there are still lots of questions about using civil
orders for serious criminal matters. I believe that serious criminal
matters should be prosecuted through the criminal courts.
Chairman: I take this opportunity to
thank both of you for your work. If you have further points we
look forward to hearing from you.
The Committee suspended from 5.05 pm to 5.22 pm
for a division in the House
1 Note by witness: Non-compliance with case
management orders and directives, [2008] Crim LR 784-792 Back
2
Note by witness: see Amadi, Juliana, Piloting Penalty Notices
for Disorder on 10-15 year olds: results from a one year pilot
(Ministry of Justice Research Series 19/08) November 2008 Back
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