The Crown Prosecution Service: Gatekeeper of the Criminal Justice System - Justice Committee Contents

2  Defining the role of the prosecutor

12.  The Crown Prosecution Service began operation in 1986. Rt Hon Sir Iain Glidewell, conducting a review of the CPS just over a decade later, commented:

"it occupied a position between the courts, which have been in existence for centuries, and the police with a century and a half of history and tradition. It is difficult for any new organisation in such a position to establish a clear role for itself and to have that role accepted by the existing older agencies. The CPS had to grapple with that difficulty, which arose partly out of group psychology and partly from the division of responsibility between the CPS and other agencies".[16]

13.  Since the CPS was created, its role in relation to the other agencies in the criminal justice system has fundamentally changed. Keir Starmer QC, Director of Public Prosecutions, told the Committee:

"when the CPS was first set up it was envisaged that it would occupy a space between an investigation by the police and proceedings in court. It would take the charge from the police and the evidence from the police, process it and parcel it out to the self-employed Bar in most instances for the serious cases for prosecution. It has now changed. It occupies the same sort of space but it is a much more sophisticated exercise of function".[17]

Our witnesses often put changes to the CPS in the context of how the CPS relates to other parts of the criminal justice system. For example, new powers of the CPS to recommend conditional cautions — whereby prosecution is suspended pending successful completion of particular conditions within a specific timeframe—were described as giving the CPS the function of a sentencer, "fundamentally blur[ring] the boundary between the role of the courts and the role of the prosecutor".[18]

14.  Nicola Padfield, University of Cambridge, felt that:

"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".[19]

We received evidence of four particular areas in which the CPS's role was changing in relation to other agencies in the criminal justice system, and, as a result, the map of the criminal justice system was being redrawn. These areas were:

  • statutory charging—the decision on what offence, if any, an individual is charged with has become a matter for the CPS in all but minor cases. This defines the parameters for much of what happens next to an individual case in the criminal justice system;
  • the link between the charge that is chosen and whether an offender pleads guilty. This raises the question of whether we are seeing the development of a plea bargaining system which moves decision-making from the judiciary to the prosecutor;
  • the extent to which the prosecutor's role is affected by powers to recommend conditional cautions, which again can involve the prosecutor in part of the judicial role of sentencing;
  • CPS advocacy, and the way in which the increase in CPS staff presenting cases in court impacts on the quality of advocacy and the future of the criminal Bar.

All of these individual changes have a potentially fundamental impact on the role of the prosecutor, on other agencies and on the working of the criminal justice system as a whole.

Where does the police role end, and the role of the CPS begin?

15.  'Statutory charging' refers to the new charging arrangements which have moved the responsibility for determining what (if anything) an individual is charged with from the police to the CPS for the more serious cases.[20] Lord Justice Auld's Review of the Criminal Courts recommended this change; the Criminal Justice Act 2003 enacted the necessary legislative provisions.

16.  Both the CPS and the Association of Chief Police Officers (ACPO) see this as a significant change both for the criminal justice system and for the relationship between the two agencies. ACPO said statutory charging was "a significant, unparalleled, collaborative project between two organisations that historically had not fully trusted each other".[21] Keir Starmer QC described statutory charging as "marking, in many ways, the coming of age of the CPS after 18 years in which we were very much the minor partner in the Prosecution Team".[22]

17.  The statutory charging scheme was rolled out between 2004 and 2006. ACPO told us that there have been "real and measurable benefits year on year during the course of this journey".[23] Tim Godwin, now Deputy Commissioner of the Metropolitan Police, speaking on behalf of ACPO as their lead on criminal justice, described in more detail how:

"Initially, as far as the Police Service was concerned it was felt that it [the statutory charging scheme] 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".[24]

The CPS also draw on these statistics as evidence of success of statutory charging: "Before the introduction of statutory charging, 36% of cases heard in the magistrates' courts were discontinued. At March 2008, that figure had dropped to 13.2%".[25] The DPP commented on the impact of discontinued cases on the broader criminal justice system:

"Every case that is discontinued has an impact on [victims and witnesses] ... It has massive resource implications because we will have prepared all those cases and the courts will have had to handle them".[26]

18.  Several witnesses felt that, as a matter of principle, the CPS should make the decision as to what offence an individual was charged with. The Public and Commercial Services Union (PCS), which represents about 3,000 CPS employees, stated that:

"the Police are not best suited to decide what evidence is required to prove a charge. This is the job for the CPS as an independent authority which was set up to prosecute criminal cases investigated by the Police in England and Wales".[27]

PCS thought that statutory charging "has been the driver behind narrowing the justice gap".[28] The Attorney General said:

"what we recognised was that it was very important to get a level of acuity, a level of judgment, at a fairly early stage so that we actually got the right charge for the right set of facts".[29]

19.  Stephen Wooler CB, Chief Inspector of the CPS, echoed the support for the principle that the CPS should make charging decisions, but also acknowledged the practical challenges:

"Whilst the charging arrangements, in my view, are very sound and actually put the decision making in the right place and ensure early preparation of cases and case building, they have, from the operational point of view, some significant disadvantages in making sure that there are quick decisions".[30]

His comments highlighted the need for both the CPS and the police to improve statutory charging:

"we looked to the CPS to be more flexible, more responsive to the police needs in the way that it delivers pre-charge decisions but also we were looking very much at the role of the police in the preparation of files, the supervision of investigating officers, to make sure that the CPS had the quality of the material that it needed to take properly informed and sound decisions".[31]

The Chief Inspector's comments followed a joint review of the new charging arrangements carried out by HM Crown Prosecution Service Inspectorate (HMCPSI) and HM Inspectorate of Constabulary (HMIC) in 2008. This report commented:

"operational personnel (both police and CPS), understood the potential benefits of the scheme … however most also felt that the processes involved need to be significantly more efficient".[32]

20.  Tim Godwin described the practical application of statutory charging as "probably the biggest issue between the two agencies".[33] The key concern from the police was delays caused by the CPS. Tim Godwin described statutory charging as operating

"a bit like a doctor's surgery … making an appointment [to see a prosecutor] and waiting your turn et cetera when in reality we should be able to access those services 24/7 when we are ready to charge".[34]

Other organisations noted the impact on timeliness. The Criminal Bar Association (CBA) said:

"Overall we feel that allowing the CPS to decide upon charge has been a positive step. But the effect of this change has also been to build in a significant delay in the time from arrest to the disposal of the case".[35]

21.  Such concerns may explain why there have been proposals to move back from statutory charging. Sir Ronnie Flanagan's Independent Review of Policing report recommended consideration of "the extension of police charging powers to all cases heard at the magistrates' court, and to additional offences subject to trial, either at the magistrates' or the crown court".[36] This was reiterated by Jan Berry, former Chair of the Police Federation, in her interim report on progress against the Flanagan Review.[37]

22.  Nevertheless, ACPO were positive that the CPS and the police could resolve their difficulties: "There are issues to be resolved about how we access charging decisions et cetera, but there is great willingness for the two agencies to work together to resolve those problems".[38] The DPP also acknowledged the difficulties and considered how to reach resolution:

"it is true that there have been some issues about how quick the service is being provided in some areas and whether face to face is the appropriate way forward or whether telephone advice is the way forward. … I do not think it is a one-size-fits-all across all areas because geography and the profile varies enormously from area to area, but there is this important initiative driven—and this is the important thing—by a standard. This is something which should be simply driven by standards, in our view, this quality of charging decision within this timeframe for the following sorts of cases, 24/7 access. The police and the CPS are working jointly on this to solve the difficulties and I am sure we are going to do so".[39]

23.  One suggested way forward was through enhancing CPS Direct, the CPS unit which provides charging decisions by telephone out of hours. Stephen Wooler said "we concluded that … there were certain features of CPS Direct which could be taken and applied to the daytime situation in order to produce that sort of flexibility".[40] Tim Godwin was also positive about CPS Direct, suggesting that as well as dealing with some of the practical concerns about getting access to lawyers, an enhanced CPS Direct model had other potential advantages in increasing consistency:

"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".[41]

The Police Federation were also positive about CPS Direct: "In a small and simplistic survey most responses were very positive [about CPS Direct] saying that on the whole this service was far better than the one given in stations".[42] It also noted however "logistical issues of getting both volume of evidence and certain types of evidence to the lawyer given the infrastructure limitations".[43]

24.  However, the remote service provided by CPS Direct is perhaps less able to deliver one of the key benefits identified from implementing statutory charging: "relationships between the police and CPS have improved which has helped develop a more joined-up approach".[44] Gillian Guy, Chief Executive of Victim Support, suggested that physically situating prosecutors and the police together had benefits in terms of the service to victims:

"our experience is that co-location of agencies actually helps … just to make sure that that communication happens and also that the people perspective is put into the system at every possible opportunity".[45]

We also heard related concerns that CPS Direct as a 'virtual' area, rather than a local service, presented challenges: "How does this [the growing role of CPS Direct] fit with issues of local (area) accountability?"[46]

25.   The relationship between the police and the CPS is not simply one of a boundary at the point of charging. Witnesses also emphasised the value of prosecutor advice to the police at the early investigative stages. Peter Lewis, Chief Executive of the CPS, told us:

"Once upon a time it was fairly easy to answer that question [when does the role of the prosecutor begin and end in the criminal justice system] in that it started after the police had charged the case, but increasingly now as we work with the police under what we call a prosecution team ethos we are starting to get involved earlier and earlier".[47]

Tim Godwin similarly described the 'prosecution team':

"The relationship with the CPS as we speak now is one that I would call a prosecution team. Certainly, a significant amount of work is going on to reduce bureaucracy, streamline processes and reduce cost through integrated prosecution teams and the development of victual courts. All those things drive efficiencies but at the same time improve our effectiveness".[48]

The Attorney General felt that such close working was improving the quality of output:

"I do think that what we are getting is a greater degree of acuity, judgment, sharpness about what is necessary, and what is also possible (and it is happening increasingly, of course) is that where the prosecutor believes that further or other information could be secured which would enable a successful prosecution to take place, that advice is being given to good effect".[49]

The Attorney saw value for the police and for the CPS in learning about each other's expertise:

"one of the things I have found really interesting is to see how, through the police and prosecutors working together, it is almost a cross-fertilisation of education so that they better understand the information that is likely to bring about a successful prosecution, but also, I think prosecutors are starting to better understand some of the challenges that investigators face".[50]

26.  Some witnesses questioned, however, whether the relationship between the CPS and the police was too close. PCS said: "Public perception of CPS independence may be affected once they become more aware of the recent close working relationships between the Police and CPS".[51] Another witness wrote "the relationship between the police and the Crown Prosecutors … seems way too close and mutually supportive".[52]

27.  Other witnesses felt that the relationship between the police and the CPS should be one of challenge. The Attorney General described how "a close, professional and robust relationship between the prosecutors and the investigators is an increasingly important aspect of justice".[53] Mind drew out the role of the CPS to make the police better: "The CPS therefore has a role to play in improving investigations, by demanding more and better evidence from the police at the charging stage".[54] Specifically they felt the CPS might have an important role to play in ensuring commensurate treatment for offenders who had targeted individuals as the victim of crime because of a disability or their ethnicity for example:

"If the CPS had greater involvement during the investigation stage prosecutors could do more to ensure that evidence is robust enough for an aggravated sentence to be considered by the judge".[55]

This accords with Keir Starmer's words, that the CPS is no longer the 'minor partner' in the relationship.

28.  We also looked at the prosecution model in Scotland, whereby the Procurator Fiscal has responsibility to direct the police during the investigation. Robin White, University of Dundee, told us "the Fiscal is in charge; he tells the police what to do".[56] In comparison, he suggested that the prosecutors in England and Wales were historically "to use a phrase, handmaidens of the police". [57]

29.  ACPO felt that such a change in powers was unnecessary in England and Wales, because close engagement between CPS and police personnel could achieve the same outcomes. Tim Godwin, ACPO, said:

"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".[58]

The CPS were not demanding such an option, although Peter Lewis, CPS Chief Executive, did not close the door to it:

"What we have found so far is that the police really welcome the sort of advice we give them … So at the moment in the sense of do we need that power to get the necessary influence [the power of the Procurator Fiscal to direct the police], the answer is, no. Obviously if it proved to be the case, then the position would need to be considered". [59]

30.  The CPS needs to take a bold and robust approach as the independent prosecutor. Part of that role is challenging the police to do better. The CPS is not a minor partner in the criminal justice system.

31.  There is much to commend in the collaborative approach being taken by the police and the CPS, which helps to raise overall standards through understanding the challenges and expertise of other agencies. While such arrangements are working well we do not see the need for the CPS to have powers such as those of the Procurator Fiscal to direct the police. The debate about whether the CPS should have such powers has to be seen in the light of the increasing development of joined up working between the police and the CPS at earlier stages of an investigation. In theory this could raise a question over the way in which the CPS will be expected—at a later stage—to make an independent decision about whether or not to prosecute but in practice it seems better to have that relationship throughout an investigation as long as both sides are clear that joint working must not blur the distinction between the police responsibility to investigate, and the CPS responsibility to take the decision about prosecution and to manage any subsequent process. Oversight of this relationship is clearly a matter for the inspection and scrutiny processes.

32.  We heard strong support on grounds of principle for the charging decision to rest with the prosecutor. We also heard concerns that the arrangements for statutory charging had resulted in delays. Nevertheless, these considerations did not lead us to a conclusion that statutory charging should be wholly or partly abandoned. There is clearly a willingness on behalf of the CPS and the police to resolve what are significant practical problems.

33.  CPS Direct provides a telephone and IT based 'remote' service, which appears to be well regarded by its users and we hope that it can contribute to the consistency and ease of access to legal advice provided for the police. However, this service should not be assumed to be a substitute for local engagement and should operate within the context of a good working relationship and mutual understanding between the police and the CPS at a local level.

Negotiated justice?

34.  Another area where the police raise concerns about the CPS is in relation to the level of charging. Police criticisms tend to focus on questions of whether the CPS is over-cautious, or target-driven, and as a result will prefer less risky, i.e. lower, charges that are more likely to lead to a guilty plea or a conviction. Sentencers ask whether patterns in charging decisions represent a move through the back-door to a plea bargaining system, which enhances the decision-making powers of the prosecutor in preference to the openness and transparency of going through the courts.

35.  The Police Federation said: "There is a perception amongst many officers that, to use a current buzz phrase, many CPS [prosecutors] are 'risk averse' when it comes to charging decisions".[60] Their concern was that the CPS would only pursue the "most certain of cases", perhaps because of how their performance targets worked.[61] John Coppen, Police Federation spokesperson on police custody issues, wrote:

"Anecdotally, police officers state that the CPS are reluctant to put before a court anything other than cast iron cases so as better to meet their performance targets. Thus cases that could realistically be charged as serious offences are either not charged at all, or downgraded to something that is easier to prove".[62]

Tim Godwin, ACPO, described how conflicting performance regimes between the CPS and the police might give rise to tensions:

"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".[63]

36.  Tim Godwin acknowledged the sorts of police perceptions around CPS charging described by the Police Federation but stated that examination did not necessarily bear them out:

"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".[64]

37.  Nevertheless, it is not only the police who raise concerns about CPS charging. The Criminal Bar Association told us:

"We suspect that there has been some under-charging … We have reason to suppose that there is a tendency to accept inappropriate pleas".[65]

The Magistrates' Association told us:

"Although this is difficult to detect, our members have been highlighting examples of cases brought into court where the magistrates felt the matter had been under-charged".[66]

The Magistrates' Association provided a number of case study examples and analysed trends in charging. It said, for example, that charges of 'Assault occasioning Actual Bodily Harm' did not often appear, but photographs of bruises and scratches were common in cases of Common Assault (which require a person to have been put in fear of violence but not necessarily for physical contact to have occurred).[67]

38.  The DPP did not believe that there was evidence of under- or over-charging by the CPS:

"What is said about over- and under-charging is said about over- and under-charging and has always been said, but there is no evidence of that that I am aware of and obviously there is judicial review of certain decisions not to charge which would give us further evidence if it was there".[68]

He also noted that the CPS was an inspected service which provided an additional safeguard as to whether decision-making was appropriate.

39.  David Jeremy QC considered some of the evidence as to whether under- or over-charging is happening in a 2008 article. He noted high levels of attrition for assault offences (citing research from 1999 demonstrating that only 19% of those charged with Intent to cause Grievous Bodily Harm, under section 18 of the Offences Against the Person Act 1861, were convicted of this rather than for example another, less serious, assault offence). He also questioned whether the statistics used to assess CPS decision-making could mask issues in charging. For example, he said that the definition of a 'successful outcome' would include a case where two offences were charged and the judge orders a verdict of not guilty upon the prosecution accepting a plea to a lesser offence and offering no evidence for the more serious one.[69] The Magistrates' Association, in discussing concerns about charging and plea bargaining, stated:

"We note that the CPS maintains a high level of success in its prosecutions. During October 2008, their overall success rate nationally was 86.5% of prosecutions: for our courts, the percentage in some offence groups such as motoring offences was higher at 90% and 93% for theft and handling offences".[70]

The Magistrates' Association appear to be questioning what the high success rate actually means.

40.  Several witnesses concluded that more evidence was needed to determine what is happening with charging. The Criminal Bar Association recommended that "an analysis be undertaken as to whether allowing the CPS to determine the appropriate charge has also resulted in under-charging or simply more realistic charging".[71] Nicola Padfield, University of Cambridge, said:

"I think we ought to undertake a lot more research … into the extent to which over-charging 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".[72]

This accords with the Magistrates' Association's conclusion as regards its examples of under-charging:

"We do not know whether this represents a back door attempt to introduce a plea bargaining system into our courts or whether these are isolated examples from inexperienced prosecutors".[73]

41.  Nicola Padfield, University of Cambridge, told us that she was "very nervous" about plea bargaining. [74] She said

"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".[75]

She went on to describe, by way of comparison, the American system where the prosecutor has power to offer bargains involving matters such as the length of sentence and the type of prison it will be served in.[76] Her concern was at the amount of power that ended up residing in the prosecutor:

"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 … 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".[77]

42.  Nicola Padfield did not ignore the potential benefits of plea bargaining; a guilty plea means that neither the victim nor the public purse need to be put through the long process of a trial. She commented:

"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".[78]

However, she emphasised the safeguards necessary for a system of plea bargaining:

"There are huge practical benefits to the system … 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 … Then, of course, the public interest does not necessarily accord with the interest of the prosecutor or the suspect".[79]

43.  The DPP similarly noted the importance of safeguards in a system of plea bargaining:

"I cannot see that there is any problem with a more formal approach if that is going on informally in any event, subject to some safeguards. One is, it has got to be transparent, and secondly it has got to be put before a court, and thirdly the court has to be the final arbiter—and I add a fourth, there must not be over-charging, in other words the Code test for the appropriate charge must lie at the heart of any system and there must never be over-charging with a view to influencing any negotiation of charges at some later stage".[80]

In March 2009 the Attorney General issued guidelines for prosecutors engaged in discussions about pleas in serious or complex fraud cases. These guidelines were aimed at encouraging "discussions about guilty pleas in fraud trials to happen earlier and more transparently".[81] The Attorney General noted that "the benefits of plea negotiations are especially marked in fraud cases and can narrow issues for trial, saving time and costs, and reduce stress for victims and witnesses".[82]

44.  The decision as to what offence an individual is charged with is pivotal, with significant implications for the rest of their journey through the criminal justice system. It also goes to the heart of what that system is trying to achieve; we are not trying to maximise conviction rates, we are trying to maximise convictions of guilty people for the crime they have committed. While perceptions of both under- and over-charging may be inevitable, they are nonetheless damaging to public confidence. The Attorney General should consider what evidence is required to monitor the extent of under- and over-charging, and how this data could be best collected.

45.  An effective and ongoing evaluation of the extent to which under- or over-charging happens is important not least because of what it tells us about whether plea bargaining is happening. Expanding the use of plea bargaining would have significant consequences and in our opinion needs the utmost care and consideration. We must not drift towards a situation where it is commonplace without discussing whether it is desirable and, if so, what safeguards must be put in place for defendants, victims and the public.

A day in court

46.  A number of witnesses expressed concerns about the growth of out-of-court disposals such as fixed penalty notices, penalty notices for disorder and conditional cautions. Prosecutors determine whether or not to use a conditional caution; this is a decision which the Magistrates' Association told us represents a shift in power from the courts to the prosecutors: "With the introduction of conditional cautions, the CPS has taken on the role of sentencers".[83]

47.  The prosecution have had powers to recommend conditional cautioning since 2003, rolled out to all CPS areas by April 2008.[84] A conditional caution suspends the prosecution on the basis of the offender completing particular conditions within a specified timeframe. A conditional caution can only be given where the suspect admits that he or she committed the offence. If the individual fails to meet the conditions, the suspended prosecution can be reinitiated. These are therefore disposals, like fixed penalty notices, in the sense that an individual does not enter the formal criminal justice system leading to a court hearing, but unlike fixed penalty notices, the conditions can vary according to the situation and the individual. Our witnesses' comments often linked fixed penalty notices and conditional cautions together as out-of-court disposals. However, the merits and value of such disposals overall is beyond the scope of this report.

48.  Our witnesses questioned whether the fundamental nature of the shift towards out-of-court disposals had been recognised and understood. Robin White, University of Dundee, said:

"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".[85]

He referred to out-of-court disposals as a "paradigm-shift" in criminal justice, away from a paramount concern of "due process" conducted in open court. [86] He said:

"Reasons for using [alternatives to prosecution] have expanded from coping with numerous minor regulatory offences by routinisation, to asserting that many 'real crimes' (including assaults, breaches of the peace and thefts), simply do not justify a court appearance".[87]

49.  Nicola Padfield, University of Cambridge, questioned whether we knew what the end product should be. She commented:

"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".[88]

She went on: "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?"[89] She also wondered whether people had really noticed "that the numbers [of out-of-court disposals] are enormous".[90]

50.  Others questioned if it was appropriate for such powers to shift towards prosecutors or the police, or whether these should be judicial decisions. Robin White, University of Dundee, commented that out-of-court disposals "constitute 'punishment without prosecution', transferring considerable power from the courts".[91] The Magistrates' Association stated:

"Whilst the Association accepts the use of fixed penalty and penalty notices for disorder or minor offences, where all who accept them receive the same punishment, it has always believed that where a choice of sentence has to be made, that is a judicial decision and not one that should be reserved to an arm of the executive".[92]

Maik Martin, a German lawyer, commented on the balance between CPS and judicial decision-making:

"While, not least under valid considerations of the most appropriate use of scarce resources in the criminal justice system, not all criminal offences should necessarily be prosecuted … it should be a decision ultimately left to judges to decide whether or not the ordinary course of the law should be disturbed by a decision of the CPS or other prosecution agency not to bring a case to court".[93]

51.  The Director of Public Prosecutions told us that conditional cautions "occupy a particular space … but I do not see them as usurping the function of the court".[94] He argued that there was a misconception that these matters would otherwise be dealt with by the courts:

"If you take together fixed penalty notices for traffic, for disorder, cannabis warnings, cautions and conditional cautions, which is a sort of broad range of powers here, you are talking about a huge number of cases. You are talking about something like 3.7 million cases. Therefore, I think it is wrong to assume these are cases which would otherwise have gone to court because there are over a million cases going to court and the system could not cope if all of those cases were being put into the system".[95]

This links back to Lord Justice Toulson's definition of the gatekeeping role of the DPP in making the decision about who should be prosecuted "at the public expense". If the courts could not cope with every case going into the system, then part of the gatekeeping role of the CPS is to determine on which cases finite resources should be spent.

52.  The Director of Public Prosecution expressed support for the system of alternative disposals, providing there were adequate safeguards: "Subject to that being transparent and having safeguards, I do not see a constitutional problem or a practical problem in the operation of that sort of system".[96] However, witnesses including the Chief Inspector of the CPS, academics and sentencers raised concerns about whether the transparency of, and safeguards for, alternative disposals were adequate.

53.  Stephen Wooler, Chief Inspector of the CPS, saw benefits for out-of-court disposals in an appropriate system. He said: "prosecution is only one means of enforcement. The criminal justice system benefits substantially from taking straightforward cases out of the criminal justice system if there can be a fair and just penalty or treatment provided in another way".[97]However:

"There are issues of … consistency of approach. Across the different authorities I could point to parts of the country where you might attract a £60 fine or fixed penalty—the Home Office are increasing that at the moment—for shoplifting or criminal damage and yet from the local authority a large fine if you overfill your wheelie bin or in London, if you are in a bus lane, it would be even more".[98]

The Chief Inspector's particular concern was that decisions as to whether to prosecute or use alternative mechanisms could differ between the CPS and other prosecuting agencies.[99] He commented: "it is very important that the enforcement as a whole, whether through the structured criminal justice system or the alternative means is actually seen to be consistent and fair".[100] The Chief Inspector felt "there does need to be a form of scrutiny which actually looks at the way those powers are being used".[101] He was particularly concerned that "such powers are less subject to judicial processes … I am not satisfied that the present level of checks and balances is sufficient to retain public confidence".[102] He noted that it could be an extension of his inspection role, although it was potentially a multi-inspectorate question, for example linking to police use of fixed penalty notices. [103]

54.  Nicola Padfield questioned whether an out-of-court disposal would result in the same penalty had the case been heard in court: "Often the fixed penalty is higher than the defendant would receive in the equivalent case going to court".[104] She questioned whether those on lower incomes would suffer a disproportionate impact from the use of fixed penalties.[105] She was concerned that a similar problem of more severe punishment than if the case had been heard in court would arise with conditional cautions, although it was too soon to evaluate the evidence.[106] The Attorney General suggested that, where there were such inconsistencies, we did not know which was the correct penalty:

"there are those who, say, get an £80 fixed penalty notice and if you went to court you would perhaps get a £50 fine. There is a big issue, is there not, as to which one is right and which one is wrong".[107]

55.  Witnesses also questioned whether the systems for conditional cautions and other out-of-court disposals were adequately transparent. Robin White said:

"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. … 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".[108]

Nicola Padfield emphasised the importance of dealing with matters in the courts:

"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".[109]

The Magistrates' Association echoed her concerns:

"Conditional cautions are an example of the triumph of pragmatism over principle. A court conducts its matters in the open where justice can be seen to be done by victims, witnesses and the public, as opposed to a conditional caution which is NOT administered in public". [110]

Mind suggested a general desire from victims for a court process: "Many people tell us … that they want to have the opportunity for their experience to be proper and often the assailant to be tried through a court".[111] In terms of defendants, the Chief Inspector of the CPS questioned whether there were adequate safeguards: "It is very important that when people are being offered fixed penalties or cautions or something of that nature, they appreciate the full implications of accepting that".[112] He noted, for example, that some penalties have implications for future employment.[113]

56.  The Magistrates' Association questioned what happened to those given conditional cautions if they did not comply:

"We have been told that 38% of those that fail to comply with the conditions of a conditional caution are not then taken to court and the matter is just dropped. This means that although the offence might be recorded as one that has been brought to justice, the offender remains unpunished".[114]

57.  We asked the Director of Public Prosecutions how often conditional cautions were not complied with. He told us that:

"Very often the conditions are conditions which we have recommended in the first place and therefore we will follow them through with the police, who will implement the caution … we have got an interest in ensuring that they are complied with and obviously it is our decision, if they are not complied with, to proceed with a charge".[115]

Despite expressing this interest in knowing what happened to those conditionally cautioned, he did not have figures to hand as to whether conditions were often not complied with.[116] The CPS wrote to us subsequently and told us that 8011 conditional cautions were made by the CPS in 2008. Of these, there was non-compliance in 707 cases, of which 571 were prosecuted, 126 were not prosecuted and 10 had their conditions varied.[117] This appears to mean that no further action is being taken against almost one fifth of those who do not comply with conditional cautions.

58.  Conditional cautions are part of a significant change to how the criminal justice system operates, making a material difference to the process by which the state punishes people. The fact that prosecutors can now recommend that an individual be conditionally cautioned, and a prosecution suspended subject to the fulfilment of particular conditions, represents a significant change to the prosecutor's role. On the other hand if such decisions prevent an individual being drawn further into the criminal justice system, and therefore succeed in reducing the likelihood that they will re-offend, that is in the interests of potential victims and society as a whole, as well as having a benefit to the individual. Such decisions can therefore contribute to the responsibility of the CPS to reduce re-offending.

59.  However, the growth in the number of out-of-court disposals represents a fundamental change to our concept of a criminal justice system and raises a number of concerns about consistency and transparency in the application of punishment. Different patterns of fines may simply reflect local priorities and be argued to be a feature of community engagement. However, we believe the use of these disposals requires systematic scrutiny, and we recommend that as a first step they should be the subject of a multi-inspectorate review. The Attorney General should assemble a comprehensive map of the offences and relevant penalties in operation across England and Wales to assist this scrutiny.

Arguing their own case

60.  Keir Starmer QC described the role of the CPS when it was set up as to "take the charge from the police … process it and parcel it out to the self-employed Bar in most instances for the serious cases for prosecution".[118] The CPS today however "prosecutes in many instances its own cases in court".[119] The role of the CPS therefore is beginning to have a fundamental impact on the criminal Bar as a competitor as well as a customer.

61.  The Courts and Legal Services Act 1990 established a statutory scheme for the definition and regulation of rights of audience before the courts. Before this, only practising barristers were able to conduct cases in the Crown Court. As amended by the Access to Justice Act 1999, this Act removed prohibitions on individuals employed by the CPS or others from exercising rights of audience. Thus the CPS may use its own in-house staff (Higher Court Advocates), either solicitors who have achieved accreditation or barristers, to present Crown Court cases rather than instructing self-employed barristers.[120] As at 30 September 2008 the CPS had 977.6 Higher Court Advocates (full-time equivalent); in 2008/9 they presented 79,947 hearings in the Crown Court.[121]

62.  The CPS argues that having its own staff present cases in court offers a number of benefits. These include "enabl[ing] the CPS to operate continuous case ownership of more serious casework which strengthens consistency of decision-making".[122] Keir Starmer QC said:

"The practical experience of prosecuting cases at trial strengthens the CPS at all levels. It improves our advice to the police. It improves our charging decisions. It improves our witness care. It will change the whole culture of our organisation for the better".[123]

The CPS business plan for 2008-11 states that one of the outcomes of the advocacy strategy is "an improved service to victims, witnesses and the public".[124] Sir Ken Macdonald QC similarly suggested that conducting advocacy in-house increased the standard of the CPS's other work:

"It makes us better at charging cases, at building cases, increases our accountability—if you have to justify yourself, the way you prepared it, in court, you're going to prepare a lot more carefully than if farming out to a barrister to take the flak".[125]

63.  Unsurprisingly, the Criminal Bar Association (CBA) articulated a number of concerns about CPS advocacy. Desmond Browne QC, Chair of the Bar Council, said: "no one could possibly be blind to the increasing share of available work being taken by the CPS in-house, or to the tension and uncertainty which that creates".[126]

64.  The Criminal Bar Association accepted in principle that there were advantages to the CPS conducting advocacy in-house.[127] However, they also described it as "counter-productive" and stated

"we feel greatest concern … that it is being conducted at the expense of what we would see are the core functions of the prosecution service".[128]

The Bar has also argued that a constitutional safeguard is lost by the CPS conducting its own prosecutions. Desmond Browne QC, Chair of the Bar, asked "Does society want an ever-expanding monolith of a state prosecutor?"[129] His concern, that the even-handedness of prosecutors who defend and defenders who prosecute would be lost, was echoed in evidence by the Criminal Bar Association:

"Many of the HCAs [Higher Court Advocates] have little or no experience of defending in the Crown Court. As a result they do not have the valuable perspective/independence of the self-employed Bar, nearly all of whom both prosecute and defend".[130]

Robin White, looking from the perspective of the Scottish system, was unconvinced:

"In England and Wales, prosecution of serious crime has been undertaken by barristers in private practice, on the ground of the need to preserve the independence of the Bar, and the possible susceptibility of professional prosecutors to 'prosecution-mindedness'. Neither justification seems plausible. The existence of Advocates-Depute has never been argued to compromise the independence of the Scottish Bar, or taint prosecutions with 'prosecution-mindedness'"[131]

65.  Nicola Padfield, University of Cambridge, questioned whether the implications for justice had been thought through, or whether advocacy had been pushed forward for potential cost-savings. She asked whether the agenda was driven by "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".[132] She called for:

"A review of the wider implications of the CPS becoming both decision-maker and advocate … what are the due process implications? Are the wider implications for the independent criminal Bar welcome?"[133]

Sir Ken Macdonald QC, former DPP, also suggested there were wider implications to the development of advocacy at the CPS:

"Advocacy changes everything for us. It enables us to grow up. To become at last a body of prosecuting advocates. I rather doubt that the broader significance of this is yet fully understood".[134]

66.  The Criminal Bar Association raised the issue of the importance of a healthy criminal Bar in the context of delivering the criminal justice system as a whole:

"The increasing deployment of HCAs [Higher Court Advocates] is also creating a longer-term problem for the effective and efficient running of the Criminal Justice System … There is a real risk that by removing vast swathes of work for the junior Bar that the balance and experience gained of both prosecuting and defending as a junior barrister will be lost".[135]

The CPS currently uses a mix of in-house advocates and members of the self-employed Bar to conduct cases. The CBA are concerned about the "negative impact on the future supply of legal services" if there are no opportunities for self-employed barristers to gain prosecuting experience as a junior criminal barrister; this could also affect the future supply of experienced self-employed advocates for the CPS. [136]

67.  One answer from the CPS is that barristers might develop flexible careers moving between employed, at the CPS or elsewhere, and self-employed advocacy. Keir Starmer QC said:

"I have no doubt that, just as in other jurisdictions, future advocates will move backwards and forwards from the prosecution service to the Bar - as indeed I have. This process is a wholly good thing and it is clearly in the public interest".[137]

Sir Desmond Browne QC, in his inaugural speech as Chair of the Bar Council, was unsure: "at present the direction of travel is all one way".[138] Rt Hon Lord Phillips of Worth Matravers, in his 2008 Review of the Administration of Justice in the Courts as Lord Chief Justice, stated:

"I am also concerned that the increasing use of 'in house' advocates by the Crown Prosecution Service … ha[s] reduced the number of those who are starting at the criminal Bar".[139]

Robin White, University of Dundee, described an alternative model from Scotland where

"There has … always been a cadre of professional, albeit temporary, senior prosecutors … Advocates-Depute have traditionally been members of the Scottish Bar, holding part-time three-year, appointments from the Lord Advocate, and the office has been seen as a stepping stone to the Bench".[140]

68.  The CPS sees advocacy as providing important career development for its own people. Keir Starmer QC commented "if we did not allow them to exercise their rights [of audience] we would be restricting what they could do if they were acting elsewhere and we would find it difficult to attract the very best".[141] The CBA acknowledge this point, and the potential benefits inherent in this approach to the quality of CPS work:

"I recognise, as does the Bar generally, the importance of having a career structure within a thriving prosecution service, and I can see the sense and adopt the logic … of a service in which one could go in and become promoted through the criminal justice system, acting not just as a case worker and the preparer of a file but also, in due course, as an advocate, so that you can see the consequences of the way files are put together, the consequences of the way an investigation is conducted".[142]

There is a potential key stumbling block to advocates building a career through the CPS, which is that there may be roadblocks between this and a judicial career. Rt Hon Lord Justice Leveson told us that "this requirement that, in the normal course of events, people aspiring to judicial office will first test their suitability by obtaining fee-paid [part-time judicial] experience, causes a difficulty for employed CPS lawyers".[143] Their concern was one of fairness:

"The overwhelming majority of criminal prosecutions in England and Wales are conducted by the Crown Prosecution Service, and for a judge to be an employee of the CPS would breach the requirement that a case be heard by an independent and impartial tribunal".[144]

Some thought is now being given to the possibility of CPS employees gaining part-time judicial experience in other arenas, such as tribunals, in which the CPS is not itself involved.

69.  The obvious further question, after whether the CPS should conduct its own advocacy, is how well it is being done. Nicola Padfield, who sits as a Recorder in addition to lecturing on law at the University of Cambridge, noted that "the increase in the percentage of advocacy dealt with in-house leads to a lot of problems".[145]

70.  One concern raised with us was whether the CPS's targets for advocacy create perverse incentives. The Criminal Bar Association suggested that the deployment of advocates

"is moving at a speed and with a disproportionate focus simply on getting people into court to be advocates at the expense of the performance of the organisation generally and at the expense of the work load of the people who remain in the office, the case workers, for example".[146]

They suggested that people might be pressured by targets to take on cases for which they did not have the experience or competence. [147]

71.  In particular, advocacy was seen as being taken forward at the expense of case preparation. PCS told us "prosecutors have high in-house advocacy targets, so are rarely in the office to work on their own files".[148] The Criminal Bar Association said:

"It seems to us that, in a drive to get as many people as possible into advocacy, there has been a diminution of those available to perform the bedrock functions of simple case preparation and the like, the sort of concept of file ownership which was such an important feature of the Crown Prosecution Service hitherto".[149]

Concerns have also been raised by members of the judiciary. For example, a Nottingham judge commented in the press that a case had to be dropped because no one at the CPS had taken ownership of it and implemented pre-trial court orders.[150] The Director of Public Prosecutions said he had "every confidence" that increasing advocacy was not undermining case preparation as he had "no evidence to suggest that is the case".[151]

72.   At the time of our inquiry the Chief Inspector of the CPS was conducting a thematic review into the quality of prosecution advocacy and case preparation. He commented:

"At the end of the day, the quality of the advocacy is actually dependent on the preparation which goes into cases. Even the best advocate cannot do justice to a poorly-prepared case. We have been looking at all those issues and how Crown advocacy is managed to ensure that you get the continuity of handling which is necessary, certainly in the more serious and contested cases".[152]

This review has now concluded and two reports published into the quality of prosecution advocacy and case presentation and an audit of systems for allocation, instruction and payment of advocates.[153] Whilst the review concluded that differences on the ground between self employed counsel and crown advocates were "not so striking" as expected from feedback and comments, the inspectorate found a difference in quality across different types of hearings.[154] In non-contested hearings a greater majority of crown advocates were fully competent; counsel performed better in trial hearings.[155] The Chief Inspector commented that the CPS has reached a "watershed" in its implementation of advocacy and needs now to "consolidate this expansion [the quantity of court work undertaken by in-house advocates] with a change of emphasis from quantity to quality".[156] He also sought "further development" of a "more collaborative and less combative approach" between the CPS and the Bar.[157]

73.  We heard that, although case ownership is supposedly one of the benefits of CPS conducting advocacy, problems may be caused by splitting off the earlier stages of advocacy (the plea and case management hearings, in which the judge, on the basis of the defendant's plea, gives directions for the future timetable of the case) from the later ones. Nicola Padfield commented:

"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 [plea and case management hearings] that morning. He or she may well not be the trial counsel".[158]

This might have a detrimental impact on victims or families; Roadpeace called for consistency in terms of the person handling the case from the CPS.[159]

74.  The Criminal Bar Association suggested that the CPS were taking the plea and case management hearings for their own advocates, and if a case went forward to trial instructing the self-employed Bar at the last minute. [160] They suggest that this has economic incentives:

"what one finds now is that in reality in-house advocates conduct almost all of the lists for plea and case management hearings [PCMHs] and very few on a proportionate basis of the trials. You do not learn much advocacy by doing a list of PCMHs, but what you do, from the point of view of a financial target, is you keep in-house, on the face of it, the money that is available to pay for advocacy".[161]

75.   The Criminal Bar Association were very concerned that "there is, in fact, no empirical evidence on the cost and quality advantages of the steps that are being taken".[162] The CPS has published information about their cost calculations of advocacy work and provided the Committee with further information on plans for quality assurance of advocacy.[163] The intention is that a CPS scheme for quality assuring their advocates, and work undertaken by the Legal Services Commission to develop a quality assurance scheme for publicly funded criminal defence advocates should converge.[164] We noticed that although the Criminal Bar Association stated that "the Bar is increasingly focused on maintaining and developing high standards … particularly in the area of advocacy" they did not feel that they had a "direct responsibility" for the quality of CPS advocacy as they had very few CPS members. [165]

76.  The development of CPS advocacy cannot simply be seen as the next logical step in how the CPS should develop: it has wider implications for the criminal justice system and will lead to a very different organisation from that which was originally set-up.

77.  While the representatives of the Criminal Bar Association clearly saw this issue in terms of the interest of their members, we recognise that the consequences of CPS advocacy on the future provision and quality of legal services as a whole require attention. The idea of advocates moving more freely between employed and self-employed work is an attractive one, not least because it would preserve the benefits of experience of both prosecution and defence work, which probably produces better advocates.

78.  We do not dismiss the anecdotal concerns raised from a number of quarters about the quality of CPS advocates and the systems for their deployment, such as allegations that complex cases are dumped on self-employed barristers at short notice, but regard this as evidence of a need for better case management by the CPS, rather than providing a general argument against CPS advocacy. We welcome the Chief Inspector's reports into CPS advocacy and case preparation and the evidence basis this provides for developing the quality of CPS advocacy and ensuring effective systems across the CPS to support this, and we look forward to considering the responses of the CPS and the Bar.

16   Rt Hon Sir Iain Glidewell, The Review of the Crown Prosecution Service: A Report, June 1998, Cm 3960, para 16 Back

17   Q 297 Back

18   Ev 88 Back

19   Q 1 Back

20   According to ACPO (Q 37) 60% of charging decisions numerically remain with the police, but anything from the level of seriousness of Assault Occasioning Actual Bodily Harm upwards is referred to the CPS. Back

21   Ev 59 Back

22   Keir Starmer QC, 'A prosecution service for the 21st century', a speech to the London Metropolitan University, 9 January 2009 Back

23   Ev 59 Back

24   Q 42 Back

25   Ev 76 Back

26   Q 351 Back

27   Ev 113 Back

28   Ev 113

The justice gap is the difference between the number of crimes which are recorded and the number which result in their perpetrator being brought to justice. Back

29   Q 371 Back

30   Q 266 Back

31   Q 259 Back

32   Criminal Justice Joint Inspection (HMCPSI, HMIC), The joint thematic review of the new charging arrangements, November 2008 Back

33   Q 38 Back

34   Q 38 Back

35   Ev 67 Back

36   Sir Ronnie Flanagan, Independent Review of Policing, Recommendation 22 Back

37   Jan Berry, Reducing Bureaucracy in Policing, February 2009 Back

38   Q 37 Back

39   Q 351 Back

40   Q 266 Back

41   Q 41 Back

42   Ev 109 Back

43   Ev 109 Back

44   Criminal Justice Joint Inspection (HMCPSI, HMIC), The joint thematic review of the new charging arrangements, November 2008 Back

45   Q 127 Back

46   Ev 106 [Nicola Padfield] Back

47   Q 309 Back

48   Q 37 Back

49   Q 376 Back

50   Q 376 Back

51   Ev 111 Back

52   Ev 91 [David Marriott] Back

53   Ev 62 Back

54   Ev 95 Back

55   Ev 95 Back

56   Q 19 Back

57   Q 3 Back

58   Q 43 Back

59   Q 310 Back

60   Ev 109 Back

61   Ev 109 Back

62   Coppen, J., 'PACE: A View from the Custody Suite', in Cape, E. and Young, R., (eds), (2008) Regulating Policing: The Police and Criminal Evidence Act 1984 Past, Present and Future, Oxford and Portland, Hart Publishing, p. 87 Back

63   Q 42 Back

64   Q 41 Back

65   Q 71 Back

66   Ev 89 Back

67   Ev 90 Back

68   Q 317 Back

69   David Jeremy QC, "The Prosecutor's Rock and Hard Place", Criminal Law Review [2008] 926 Back

70   Ev 89 Back

71   Ev 65 Back

72   Q 11 Back

73   Ev 89 Back

74   Q 5

Robin White (Q 9) defined different types of plea bargaining: sentence bargaining, where the sentence becomes less than it would otherwise have been; charge bargaining, where one charge might be dropped for a guilty plea to a lesser charge; and fact bargaining, where the charge would stay the same but there might be agreement as to how the prosecutor describes the circumstances, e.g. stabbed rather than repeatedly stabbed. We are looking here at charge bargaining. Back

75   Q 5 Back

76   Q 6 Back

77   Qq 6-7 Back

78   Q 11 Back

79   Q 7 Back

80   Q 317 Back

81   Attorney General's Office Press Release 18 March 2009, Back

82   Attorney General's Office Press Release 18 March 2009, Back

83   Ev 88 Back

84   Ev 76 [CPS] Back

85   Q 3 Back

86   Ev 133 Back

87   Ev 132 Back

88   Q 30 Back

89   Q 31 Back

90   Q 30 Back

91   Ev 132 Back

92   Ev 88 Back

93   Ev 93 Back

94   Q 314 Back

95   Q 315 Back

96   Q 315 Back

97   Q 267 Back

98   Q 269 Back

99   Q 267 Back

100   Q 269 Back

101   Q 268 Back

102   HMCPSI annual report 2007/8 Back

103   Q 269 Back

104   Q 30 Back

105   Q 30 Back

106   Q 30 Back

107   Q 378

In addition to the specified amount of the fixed penalty notice or fine imposed by the court there will be other costs such as the cost to the defendant in time, travel and inconvenience of attending court and the costs to the public purse to administer a fine or fixed penalty that need to be considered in any comparison. Back

108   Q 3 Back

109   Q 31 Back

110   Ev 89 Back

111   Q 144 Back

112   Q 269 Back

113   Q 269 Back

114   Ev 89 Back

115   Q 320 Back

116   Q 321 Back

117   Ev 85 Back

118   Q 297 Back

119   Q 297 Back

120   The CPS now uses the term Crown Advocates to describe the in-house CPS lawyers entitled to appear in the Crown Court.

In 1998 legislation was introduced that enabled trained but non-legally qualified CPS staff to review and present certain types of non-contested cases in the magistrates' court. These individuals are now called Associate Prosecutors (formerly Designated Case Workers). Recently these rights of audience have been subject to extension. Back

121   Ev 80 Back

122   Ev 81 Back

123   Keir Starmer QC, 'A prosecution service for the 21st century', a speech to the London Metropolitan University, 9 January 2009 Back

124   The Crown Prosecution Service Strategy and Business Plan 2008-11 Back

125   The Times, 'Sir Ken Macdonald: We are determined to do more ourselves', April 8 2008 Back

126   Bar Council Minutes, 8 December 2008 Back

127   Q 90 Back

128   Ev 65, Q 69 Back

129   Bar Council Minutes, 8 December 2008 Back

130   Ev 67 Back

131   Ev 132 Back

132   Q 24 Back

133   Ev 107 Back

134   Sir Ken Macdonald QC, CPS Lecture, 'Coming out of the shadows', 20 October 2008 Back

135   Ev 67 Back

136   Ev 72 Back

137   Keir Starmer QC, 'A prosecution service for the 21st century', a speech to the London Metropolitan University, 9 January 2009 Back

138   Bar Council Minutes, 8 December 2008 Back

139   The Lord Chief Justice's Review of the Administration of Justice in the Courts, March 2008, HC 448 Back

140   Ev 132, Ev 134 Back

141   Q 348 Back

142   Q 82 Back

143   Ev 125 Back

144   Ev 126 Back

145   Q 24 Back

146   Q 69 Back

147   Q 72 Back

148   Ev 113 Back

149   Q 69 Back

150   Nottingham Evening Post, 'Judge's anger as trial abandoned', 1 December 2008 Back

151   Q 346 Back

152   Q 265 Back

153   HMCPSI, Report of the thematic review of the quality of prosecution advocacy and case presentation, July 2009; HMCPSI Audit of the instruction of prosecution advocates in the Crown Court and the payment of counsel by the Crown Prosecution Service, July 2009 Back

154   HMCPSI, Report of the thematic review of the quality of prosecution advocacy and case presentation, July 2009, paragraph 1.21 Back

155   HMCPSI, Report of the thematic review of the quality of prosecution advocacy and case presentation, July 2009, paragraph 1.23 Back

156   HMCPSI, Report of the thematic review of the quality of prosecution advocacy and case presentation, July 2009, HM Chief Inspector's foreword, p.1 Back

157   HMCPSI, Report of the thematic review of the quality of prosecution advocacy and case presentation, July 2009, HM Chief Inspector's foreword, p.2 Back

158   Q 25 Back

159   Ev 123 Back

160   Q 86 Back

161   Q 86 Back

162   Q 69 Back

163   Ev 86 Back

164   Ev 86-7 Back

165   Qq 81, 77, 78 Back

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