Examination of Witnesses (Question Numbers
40-59)
TIM GODWIN,
CATHERINE LEE
AND JOHN
KENNEDY
20 JANUARY 2009
Q40 Chairman: In office hours CPS
makes charging decisions?
Tim Godwin: Yes. There may be
two or three offenders who are ready for charge at the same time
and when you have charging lawyers in police stations it is about
getting access to them to make the charging decision. As a result,
Peter Lewis as chief executive of the Crown Prosecution Service
and ACPO are piloting a CPS Direct enhanced service which means
access 24/7. We use the virtual court technologies to which I
am sure the Committee is alive in terms of collaborative space.
Technically, that enables us to have a single file in a number
of places so the prosecutor can see the file; it does not have
to be in the police station. We have the file and can amend it
at the same time. We can have face-to-face contact through virtual
conference facilities. That is the answer to the issue of charging.
It makes us far more efficient and means that we can access those
services quite quickly, whereas the current system is inefficient
because it relies on lawyers being present at the time.
Q41 Julie Morgan: You raised the
issue of having a more efficient system. You also said that there
was the occasional rub when you felt that the decision was different
from what you would have wished. Does that happen very often?
Tim Godwin: Yes, and for the police
it can give rise to a bit of a myth, in that the reason detection
and commission rates go down is that we cannot get a charge out
of the CPS. Generally, when that happens I ask the officers in
my command to send me the files so I can assess whether they are
accurate in terms of the quality of the evidence or otherwise.
Generally speaking, I end up deciding that probably the CPS has
got it right. That arises sometimes but it is a relationship issue.
You have a passionate, enthusiastic police service that wants
to do something and as a result the CPS quite rightly challenges
it and says that a little more evidence is needed. One of the
big issues of which I am sure the CPS is aware, because I have
had conversations with Peter Lewis about it, is consistency. The
Police Service has a lot of very young officers with varying skill
and experience in various places. The CPS is no different from
that. I believe that with a virtual charging centre where you
have a specific number of experienced lawyers to make decisions
on charging there will be a far more consistent outcome and, as
a result, we can plan evidence quality. One needs to address inconsistencies
as between lawyer A and lawyer B as to whether, for example, a
fingerprint needs corroborative evidence, but I am confident that
that work is being done. There are three pilot areas and I hope
that that will roll out quite quickly.
Q42 Julie Morgan: How have you adjusted
to the statutory charging scheme?
Tim Godwin: That is really what
I am talking about here. Initially, as far as the Police Service
was concerned it was felt that it could not be trusted, but when
you look at the discontinuance rates we had at the time as far
as efficiency was concerned the necessary relationship between
the service and the CPS was not there in terms of victims. Since
then the outcomes show that whilst the number of charges has fallen
numerically convictions have increased, so on that data we are
getting better judgments in terms of outcomes which must be good
for victims and witnesses. But one of the challenges identified
in Flanagan was the difference between us in terms of performance
regimes. An example of that would be lawyer A with 100 burglary
files who charges all of them and gets 60 convictions and lawyer
B with the same number of burglary files who charges 10 and gets
10 convictions. For the Police Service lawyer A is the better
lawyer; for the CPS lawyer B is the better one because at that
point it is based on conviction rates. That issue is identified
in Flanagan. We are adjusting performance regimes so they are
compatible and so we acknowledge discontinuance and efficiency
but at the same time it is about bringing the guilty to justice.
That will never be clear; there will always be grey areas, but
it is a journey we are making together.
Q43 Chairman: Earlier we heard how
the procurator fiscal in Scotland directed the police. He would
say there would be no point in seeing this witness and they should
see that witness or pursue this but not that evidence. Does ACPO
have a view about moving to that kind of system? Do you have a
personal view? I imagine that many police officers have a view
about it. It is a system that is very long-established and clearly
functions efficiently in Scotland.
Tim Godwin: In terms of serious
crime it is a matter of common practice in the Police Service
to bring in the CPS early in the investigation so they can give
advice and guidance in terms of where the line of inquiry may
go and what is needed to get to the point of charge. Therefore,
for homicide, rape and crimes of that kind we would have that
sort of contact. As to the more "volume" crimes probably
the capability of CPS would be sorely tested to achieve that.
I believe that in the case of those crimes the Police Service
is quite capable of making those sorts of choices and decisions
in the investigation, but in the case of serious crimes there
is collaboration prior to charge. Having been on the street crime
initiative that led to the National Criminal Justice Board, many
moons ago I recall getting some feedback from the Civil Service.
That came from the lady sitting on my right. Following a walk-through
of the failures of the criminal justice system in terms of robbery
offenders, the advice was that prosecution started before charge
and investigation continued after it. That has stuck in my mind
ever since. Therefore, there is a role for the prosecutor to become
involved before charge, but it depends on the level of offence,
the level of detail and how much it is direction or advice. I
believe that advice is right, but the problem lies in the capacity.
Convictions and trials are going up in large parts of England
and Wales and the fiscal settlement for the CPS will make that
challenging.
Q44 Chairman: Are you saying that
in those areas where there is such closeness at an early stage
there is not that big a difference? Although it is called "advice"
in England and "direction" in Scotland you have more
or less got to take the advice; otherwise, you will not get your
prosecution or you will be wasting your time, whereas in Scotland
there is a clear power to direct. But it also has resource implications.
If the prosecution say to you that you must interview 10 more
witnesses, as the fiscal can say to the police in Scotland—presumably,
they must be accustomed to dealing with this—do you see
it as a resource problem?
Tim Godwin: We do see it as a
potential resource problem. As to the difference, in terms of
direction, ie who is in charge of the investigation, we see ourselves
as accountable in court for it, but there is a need to operate
as a team and so we work very closely together to achieve the
same objective which is to obtain a charge when one is appropriate.
Q45 Chairman: Before I ask Dr Whitehead
to ask some questions, this may be the opportunity for Catherine
Lee to make her opening statement about the work in which she
is engaged.
Catherine Lee: John Kennedy and
I work in the Office for Criminal Justice Reform which is a relatively
new organisation that reports to the three ministers responsible
for overseeing the criminal justice system. It was very much born
out of a feeling that the system needed to be better joined up
which is why we have trilateral reporting arrangements. We support
the National Criminal Justice Board which has on it the heads
of all the agencies that make up the criminal justice system,
ministers and senior advisers. They set the general direction
which is underpinned by a public service agreement target called
Justice For All, but delivery is absolutely down to local criminal
justice boards of which there are 42. Those are coterminous with
police force areas. Our task in the Office for Criminal Justice
Reform is very much to work with criminal justice boards, both
with chairs such as Tim Godwin and other members but crucially
with their support teams, to try to enhance their capability to
understand and prioritise their local business, respond to the
needs of their communities and meet the targets set across the
whole system.
Q46 Dr Whitehead: I should like to
move directly from that description of how management moves from
national level to the 42 local criminal justice boards. I think
this is a question for all the witnesses. How would you describe
the relationship between the police at local level, the CPS and
the boards themselves? How does that work in practice, and what
issues have arisen in terms of that relationship?
Catherine Lee: I think that at
approximately the time local criminal justice boards were set
up statutory charging came into being which encouraged the new
prosecution team ethos to which Tim Godwin referred. It was a
time when the CPS and the police were beginning to develop a closer,
though still properly independent, relationship with each other
and to work on a number of initiatives not just statutory charging
but, crucially, as another lesson we learnt from the street crime
initiative, the importance of providing really consistent and
strong support to witnesses going through the system. Another
example of how the CPS and the police work together is the setting
up of witness care units to provide single points of contact post-charge
right through to post-conviction. There are all sort of other
areas in which they work together. I believe the establishment
of the local criminal justice boards at that time encouraged and
enhanced the prosecution team ethos because it provided an environment
whereby they were coming together anyway but with their wider
partners across the whole system, typically meeting every month
or six weeks. Not only is it important because they then share
the agenda and decide collectively what their priorities are at
the table, but there is an awful lot of less formal stuff that
goes on at those meetings at the margin which encourages that
kind of joint approach. Importantly, that comes from the very
top at local area level and we hope that that is transmitted down
to the charging suites and witness care units. This is an ethos
that has been evolving over the past five years and has now reached
a good point, though there are still rubbing points as Tim Godwin
highlights.
Tim Godwin: For me, the initial
challenge was to understand each other, to understand that we
had common objectives and the key issues where we could work better
in collaboration to achieve the same outcomes. That has now shifted.
There is understanding in the vast majority of cases. There is
still the odd relationship issue in the 42 locations between the
chief crown prosecutor and the chief constable, but in the vast
majority of cases those relationships are forged through the criminal
justice boards. We see that now far more criminal justice boards
at local level take charge of the agenda as opposed to being directed
through the NCJB and OCJR. There will be tension between the local
perspective and national perspective which we are going to resolve
at a strategic level. The other point is that obvious areas of
waste within the criminal justice system are overcome only by
joint planning. One of the key challenges in that regard is that
sometimes the cost will arise in one agency and the benefit in
another. I believe that swapping the benefit with the cost across
agencies is a challenge that many of us must overcome. For example,
across the country the CPS and the police operate two separate
files which is inappropriate in any event in terms of evidence.
In London we now go to a single file which we call an integrated
prosecution team. It means that post-charge I do not need criminal
justice units and I can reinvest in prisoner process units to
get police officers back out of cell blocks quickly, and I can
clear up the stuff around criminal injuries compensation by investment
and cash savings by paying money to the Crown Prosecution Service
to do a single file and cover my work as well as theirs after
charge, which is totally appropriate. That is a big cultural change
in terms of putting the money across.
Q47 Chairman: You pay them to do
that?
Tim Godwin: Yes. That saves the
police authority a significant amount of money. It reimburses
them for the work they need to do. It also means that we are far
more collaborative in terms of planning. That will also come into
the court service. We have to be careful of the judiciary and
its independence. Equally, in terms of the court service the benefits
of virtual courts, court closures and things like that are a challenge
for anyone to talk about. Those issues become very political but
will have to be addressed and I think that is the next iteration
of the debate at criminal justice board level as we move on. I
can see some significant efficiencies to be gained there together
with speed in obtaining justice. In trying to keep a victim motivated
and informed there is nothing worse than having a date set for
trial that is nine months hence. We need to get down all those
trial times, and in the virtual court of which we have a prototype
working with the CPS and the court service our first client was
arrested for domestic violence at 12 and was convicted and in
Brixton prison at five the same day, and for the victim it was
a significantly different experience from the ones before. That
is the sort of thing we can do when we work together effectively.
Q48 Dr Whitehead: Is the downside
to that that whilst there are benefits in having an agreed process
agencies may start vying for work, as it were, in that they work
closely together in the local board and then say they can do this
and that and there is a contested area of overlap of work, or
a contest for work which is not an agreed process, and therefore
is not necessarily one that leads automatically to the sort of
outcomes you describe?
Tim Godwin: I think that would
occur if you did not have clear objectives to achieve. At the
moment I do not think any of us vies for more work, but it could
well arise as you start to process it as a business. You need
to be businesslike but it is not a business in terms of trying
to get more contracts to increase your size or whatever. At the
moment we still have too long a time for our trials. We have a
national effectiveness rating—it is slightly higher in London—in
terms of confidence. As to effectiveness, nationally 37% of those
citizens asked believe we are effective; it is 56% in terms of
fairness. That is a big challenge. At the moment the focus is
on ensuring people see that we become far more effective, dynamic
and quicker and that we get consistency and all the rest of it.
I have not experienced that yet. That is not to say it might not
occur later, but probably there is a big journey before we get
to that point.
Q49 Dr Whitehead: I have a question
for John Kennedy. The CPS has been given a particular role in
pursuing the success of some public service agreements, particularly
PSA23 which concerns antisocial behaviour and targets for reducing
the number of people who perceive antisocial behaviour as a problem.
How do you think the CPS has done in discharging that area of
concern under those PSAs?
John Kennedy: The CPS occupies
an important role in terms of the delivery of both PSA23 and PSA24,
and indeed PSA25 has an important relationship in how those agreements
are delivered. The role of the CPS in terms of the PSA23 contribution
is that the traditional approach of prosecution in terms of the
position prior to statutory charging was that the CPS primarily
received files from the police and at that point initiated the
prosecution. As Tim Godwin described, they did not take a position
before charge and were not encouraged to do so. The approach has
widened the view of the prosecutor; it has widened the view to
include aspects of PSA23, so in terms of antisocial behaviour
the CPS is currently working in providing specialist prosecutors
in a number of areas to ensure there is specialist advice about
the nature of the law of disorder and the possible remedies to
which it can respond. In terms of community justice which is another
issue in the context of PSA23 the CPS has been working alongside
community justice pilot areas offering a customised service that
is supportive of those pilot arrangements. In the case of prolific
and priority offenders the CPS was involved in the development
of the policy in 2004 and is a key partner in terms of the fast-tracking
of prolific and priority offenders through the criminal justice
system. In terms of a number of aspects of PSA23 the CPS has occupied
a key role and has been part of the team response required of
a criminal justice system.
Q50 Dr Whitehead: Would you describe
that as a developing role and, if so, how do you think further
improvements to it might be made?
John Kennedy: The illustration
of the position in London and the concept of the prosecution team,
where in effect the police and prosecutor work more collaboratively
together at an earlier stage in terms of investigation and evidence
gathering, provide a very effective model in understanding how
joint resources in times of straitened finances can be made to
go further and be more effective whilst not necessarily reducing
the quality of the outcomes.
Q51 Chairman: Is this very much a
London thing? Has it not been done much anywhere else?
John Kennedy: In terms of development
I believe that London has led on this. Tim Godwin in his ACPO
role is perhaps better placed than me to comment on it.
Tim Godwin: If we have a problem
such as antisocial behaviour and gang-related crime we now have
such a relationship with the criminal justice boards where we
can have experienced lawyers attached to those units that tackle
those issues, whether they be neighbourhood teams or specific
gang task forces. They review the evidence and assisting us in
terms of how we might make the criminal justice system effective
in tackling those problems. I know that the intent is for the
CPS to look at problem-solving or prosecutors will support the
neighbourhood teams which are rolled out across the whole of England
and Wales. This will be for England and Wales. It will support
them to resolve specific problems in neighbourhoods where the
CPS lawyer would become part of the group that looks at how to
resolve it in the longer term. If Peter Lewis were here—I
am always nervous about speaking for someone else—one of
his concerns would be capacity in terms of the throughput of cases.
Because we are becoming more effective in capturing offenders
in the fiscal planning processes we will have to deliver the efficiencies
to enable them to free up sufficient lawyers to do that effectively
even for the whole of London. Therefore, in terms of the charging
we mentioned before which will reduce the number of lawyers required
the virtual court means that fewer prosecutors will be hanging
around courts because they can do it virtually from Ludgate Hill
or wherever. That will enable us to develop further the problem-solving
neighbourhood prosecutor to work with the police to tackle the
priorities that citizens have identified through the neighbourhood
policing process.
Q52 Alun Michael: I am wondering
how to ask a question that relates what you have just been talking
about to the next point. To say that I am struggling to understand
how best to relate it may help you in answering it. It is about
two and a half years since the publication by the then Department
for Constitutional Affairs of Delivering Simple, Speedy, Summary
Justice. I am sure the department must have spent months dreaming
up that title. Looking at that, the aim was fairly clear; it was
to look at the system and the courts in particular to ensure they
were more responsive to concerns raised by local communities and
to deal more speedily with low-level crime. In that sense it is
very complementary to the agenda for the creation of the crime
and disorder reduction partnerships, things like ASBOs and so
on. As I understand it, those proposals focus on magistrates courts.
In the two and a half years since that publication to what extent
has that approach become embedded? Is it working? Is that improved
communication working in the way suggested at the time? As Obama
is speaking at the moment, can you give us a state-of-the-nation
update on that aspect of tackling local crime and disorder?
Catherine Lee: It is perhaps not
the snappiest of titles. It does do what it says on the pack.
The focus was on trying to make the system proportionate, simple
and speedy. It had become over-complicated particularly in magistrates
courts. A lot of the panoply of the crown court procedural process
had been put onto magistrates courts. Peter Lewis, who has been
referred to already several times, plus colleagues from Her Majesty's
Court Service went on a grand tour of various courts and were
appalled at the number of adjournments simply because things were
not ready. Pleas which should have been entered at a much earlier
stage as guilty pleas were not happening because there was chaos.
There were adjournments caused by both the defence and CPS and
there was no grip taken by the court; it did not have the right
information to take it. This process was very much a cross-agency
matter and was led by local criminal justice boards. In every
single area court teams got together; they brought together not
just the police, CPS and HMCS staff but also judges, district
judges, magistrates and crucially the defence to work out how
they could better manage the system. As a result the figures show
there has been a huge improvement—21%—in timeliness,
which was critical, and a 30% improvement in adjournments. What
we are looking at here is low-level offending that should be dealt
with simply and speedily in the magistrates courts as a response
to lots of low-level crime that is taking place in areas. In streamlining
processes like that people gain confidence that the courts will
deal with this and perhaps fewer out-of-court disposals are needed.
Q53 Alun Michael: Can you help us
with the figures? You said that there had been a 21% improvement
in timeliness. What is the measure?
Catherine Lee: I think the measure
is the time taken from first hearing through to conviction.
Q54 Alun Michael: So, there has been
a 21% improvement in the overall time?
Catherine Lee: Yes.
Q55 Alun Michael: From the initial
charge?
Catherine Lee: I believe it is
from the first hearing, but I have to check that.
Q56 Alun Michael: It depends on how
long the first hearing took. Perhaps you would clarify that for
us.
Catherine Lee: I will clarify
it in writing[3].
Q57 Alun Michael: You referred to 30%.
Is that a 30% reduction in adjournments altogether?
Catherine Lee: Yes.
Q58 Alun Michael: That is quite significant.
Catherine Lee: It is very significant.
The reason why we really must press ahead with the streamlining
process that has been referred to several times is that because
we have got things into a much better state now in magistrates
courts by saying that much more has to be done at the front end
so that cases are trial ready at a much earlier stage it should
not result in more unnecessary work for the police. As a result
of that we are embarking on the work of streamlining the process,
to which Tim Godwin has referred, to make sure that file preparation
is proportionate and the police are not doing too much to get
cases into an appropriate state of readiness to have an effective
first hearing.
Tim Godwin: In my view it is now
embedded across all the areas in terms of the first hearing; that
is, one hearing for guilty pleas and two for not guilty pleas.
We review why we do not achieve that and learn from the experience
where it is not achieved. When that was brought in it provided
good evidence of the collaborative working referred to earlier.
The Police Service, being a nervous bunch of people, anticipated
being asked to do a lot of statements very quickly which would
prove unnecessary in prosecuting cases—hence the debate
with the Crown Prosecution Service and the Director of Public
Prosecutions to get a streamlined process and, at the same time,
still monitor guilty pleas and effective trial rates. The outcome
for us is that in terms of charge to conviction the period has
been reduced by about two weeks. We have asked for the six pilot
areas now being undertaken to be rolled out across England and
Wales, but we save 98 minutes of an officer's time. I do not know
how they account for the eight minutes, but it is an hour and
a half per guilty plea. Where we anticipate a guilty plea but
it then becomes a not guilty plea the case file saves us 158 minutes
in terms of the amount of paperwork time. That is really usable
time—it is not 30 seconds—when police officers can
go back out. We needed not just the CPS to change that and for
lawyers to be briefed to accept it because it is summaries of
evidence but also the judiciary to support the case management
in magistrates courts. That was crucial. For example, why does
one need a busy doctor to make a statement that a person had a
bloody nose? Does not the photograph tell you that? That can be
asked in the court at the point of taking the plea. Lord Justice
Leverson as senior presiding judge spoke to all the bench chairs
across England and Wales to point out their responsibility in
supporting robust case management. The results have been pretty
effective. As a result everyone is totally signed up to going
further in understanding how it can be done better.
Q59 Alun Michael: You heard in earlier
evidence some concern about the pressure to meet targets, perhaps
putting some decision-making at risk. Are you satisfied that so
far that is not the case and there are sufficiently robust systems
in place to avoid that sort of fraying at the edges which is a
danger with any system that seeks to improve efficiency?
Tim Godwin: I am satisfied that
there are such safeguards. I think the fact that it has to go
through the prosecutors and not just the police and all the rest
of it means that those safeguards have been put in place. We are
looking at what happens in terms of guilty plea changes et
cetera and it is the same under the new system as it was under
the old. Guilty pleas are probably improving. I believe that the
safeguards are there because it goes through the court process.
3 Note by witness: Criminal Justice: Simple,
Speedy, Summary Performance (CJSSS). The statistics provided in
the oral evidence session (p 32) relate to CJSSS cases, which
are adult charge cases prosecuted by CPS/ Police, disposed of
in the magistrates' court. They do not include summons cases or
cases that are committed or sent to the Crown Court. These cases
have had:-an estimated 21 per cent improvement in timelines from
charge to completion in magistrates' courts (reduced from 61 days
to 48 days);- an estimated 30% improvement in the average number
of overall adjournments (reduced from an average of 1.93 adjournments
per case to an average of 1.36 adjournments per case). The data
comparison period in the Time Intervals Survey in September 2008
compared to the CJSSS baseline period, which is aggregated from
the 4 quarterly surveys during the 12 months to March 2007. (
The Time Intervals Survey operates for one week in each calendar
quarter and captures timeliness data on all relevant criminal
cases completed in that week (the survey period is longer for
youth cases). They are therefore "snapshot" estimates,
rather than exact measures and are liable to function as a result
of case mix changes and other external factors, as any snapshot
survey would be. It is worth noting therefore that such changes
in the results may not be similarly reflected in future Time Intervals
Surveys. The result of the Time Intervals Survey are published
in a national Statistics bulletin prepared by the Economic and
Statistics division of the Ministry of Justice. Current and previous
editions of the Time Intervals Survey bulletin can be found at
http://www.justice.gov.uk/publications/time intervals.htm) Back
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