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


Memorandum submitted by the Criminal Bar Association

WRITTEN SUBMISSIONS OF THE CRIMINAL BAR ASSOCIATION FOR THE JUSTICE COMMITTEE'S INQUIRY INTO THE CROWN PROSECUTION SERVICE

  1.  The Criminal Bar Association ["CBA"] welcomes the opportunity to provide submissions to the Justice Committee's comprehensive inquiry in to the Crown Prosecution Service ["CPS"]. The CBA has in the region of 3,500 members, a large proportion of whom undertake a significant amount of advocacy and advisory work for the CPS. As such the CBA is well placed to comment upon the strengths and weaknesses of the CPS. We have sought to limit our submissions to those issues upon which we have particular knowledge and have therefore isolated particular parts of the terms of reference.

  2.  Earlier in the year we drafted written submissions. We have amended those to take in to account recent developments and to remove those sections relating to the role of the Attorney General which we understand the Committee has already considered. These submissions should be regarded as being in substitution for the earlier submissions. The CBA would be willing to provide additional submissions either developing any points made in this document or in respect of points arising from submissions from other bodies/organizations. Further the CBA would welcome the opportunity to provide oral submissions to the Committee.

EXECUTIVE SUMMARY

  3.  The CBA is of the opinion that the CPS makes a significant and a positive contribution to the Criminal Justice System but that it is currently under-resourced.

  4.  The CPS has made improvements in the way in which it addresses the needs and concerns of victims and witnesses and in the way in which it handles rape and other sensitive cases. However, for the reasons set out at paragraphs 6 and 12-29 we are concerned that those improvements are beginning to be reversed.

  5.  The CBA agrees that allowing the CPS to make charging decisions is a positive step but would suggest that this has created delays in the time between the date of the offence and disposal of the case. We also recommend 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.

  6.  The CPS policy of using its own in-house advocates in the Crown Court is counter-productive. The flaws in this policy far outweigh any perceived advantages. Moreover the CBA is of the opinion that the increasing use of in-house advocates is being rushed and that as a result financial targets are being met by following practices that are not in accordance with the spirit of the Criminal Procedure Rules nor in the public interest.

  7.  The CBA is concerned at the marked discrepancy between the fees paid to Prosecution advocates and Defence advocates in the Crown Court, which is particularly marked in rape cases.

CPS CONTRIBUTION TO AND HOW IT FITS INTO THE CRIMINAL JUSTICE SYSTEM

  8.  The CPS plays a fundamental role in the Criminal Justice System. In the main the CPS now decides whether a person should be charged with a criminal offence and if so, with what criminal offence. The CPS brings the vast majority of the criminal prosecutions in England and Wales. The work undertaken by the CPS varies enormously both in terms of its severity and complexity.

  9.  In order to fulfill their onerous obligations the CPS self-evidently requires sufficient resources. The CBA has significant concerns at the fact that the CPS budget for the next three years will reduce in real terms by 3½% per annum. This is despite the fact that those cuts will take place at a time when the CPS is prosecuting cases of increasing complexity including, but not limited to, terrorism prosecutions.

  10.  It is perhaps therefore no coincidence that there has recently been an increasing use of cautions and non-court disposals. Further there is a perception that budget constraints may be leading to a culture of under-charging by the CPS. It may in fact be that there is now more realistic charging than used to be the case but we would ask that the Committee consider analysing the statistical data to see if the perception is accurate.

How does the CPS operate and serve its customers?

  11.  Over the last few years there have been a raft of measures which seek to ensure that the interests of victims and witnesses are paramount. Those include the Prosecutors' Pledge, the Victim's Code and the "No Witness No Justice" Project. It is difficult for the CBA to comment in detail on the success of those measures and we would suggest that others such as the Witness Service and Victim Support will be better placed to assist in this regard. However, it is our experience that the CPS has given both victims and witnesses an increased priority in the last few years.

Do the different staff functions of the CPS support effective case management?

  12.  The CBA has very real concerns at the CPS's current and future staffing policies. This concern primarily relates to the use of in-house Crown Advocates who are more generally known as Higher Court Advocates ["HCAs"].

  13.  The CPS maintain that the reason for using their own HCAs to undertake more Crown Court advocacy is:

    (a) that advocacy experience is likely to improve the standard of advisory work performed by the CPS's lawyers and in particular in deciding whether and with what offences to charge;

    and

    (b) that guaranteed Crown Court advocacy is likely to enhance the prospects of recruiting able lawyers to the CPS;

    and

    (c) increased continuity and ownership of cases;

    and

    (d) that it is cost effective.

  14.  The CBA does not accept that those arguments justify the current significant use of HCAs, many of whom are relatively inexperienced. At no stage have the CPS been willing to demonstrate to us that the true costs of using HCAs will actually save any money. The figures that are alleged to support the claimed cost saving have never been revealed. The junior bar with its low overheads is highly cost effective. A policy with such far-reaching consequences surely requires a transparent and independently audited study. It has had no such thing. Indeed the CBA strongly suspect that the CPS have not in fact undertaken a full and rigorous assessment of the advantages and disadvantages of undertaking a far greater volume of advocacy in-house as opposed to using the expertise and cost-efficiency of the self-employed Bar.

  15.  The introduction of the Criminal Procedure Rules in April 2005 was meant to herald a change of culture in criminal cases. Effective case management, especially in the Crown Court, is vital to the efficient running of difficult and often complex cases. There is a direct link between the efficient running of the criminal courts and the way in which the Criminal Justice System is perceived by the public whether they are victims, witnesses or jurors or more generally.

  16.  At the heart of effective case management is the need for the Trial advocate to be instructed at as early a stage as possible and prior to the Plea and Case Management Hearing ["PCMH"]. The PCMH is the hearing at which the Defendant will be arraigned and when the Judge will give directions to ensure that the case will be ready for Trial when it is listed. In Crown Court defence work the principle of the early instruction of the Trial advocate was enshrined in the Revised Advocacy Graduated Fee Scheme which was introduced in April 2007 following Lord Carter of Coles' Final Report.

  17.  Unfortunately the CPS's current practice is to instruct the Trial advocate after the PCMH. This is as a direct result of their desire to ensure that the HCAs undertake more of their own advocacy. Until recently practically every case heard in the Crown Court was prosecuted by members of the self-employed Bar. However, in the last three years the CPS has dramatically increased the amount of Crown Court advocacy which its HCAs are doing.

  18.  In order to ensure that the increasing using of HCAs was fair and in the interests of justice a "Framework of Principles" was agreed between the CPS and the Bar in 2006. A copy of that Framework is attached at Appendix One. The spirit of the Framework of Principles has been given additional status by part of its contents being included in the Criminal Case Management Framework[1].

  19.  Unfortunately the CPS have continually failed to comply with this Framework. In a recent example, both the prosecution and the defence briefs in a section 18 wounding case (involving a 10-suture leg wound to the defendant's cohabitee), were returned to members of the self-employed Bar a matter of days before the trial, after a number of written defence requests for disclosure of the victim's medical records to which no response had been given by the CPS. In the face of a threatened defence application for wasted costs, the prosecution abandoned the application for an adjournment to deal with the requests for disclosure and accepted a plea from the defendant to common assault, for which he was conditionally discharged. It is difficult to imagine, in those circumstances, that the interests of the victim and of justice were best served by the delay in instructing the trial advocate for what amounted to about five months. Key principles 1, 2, 5, 6 and 7 of the Framework do not appear to have been complied with in that case.

  20.  It is notable that the Framework is not on the CPS website nor is it referred to in the CPS's Strategy and Business Plan for 2008-11 (which was published in April 2008). In fact the sections of that Strategy and Business Plan which relate to advocacy could reasonably be regarded as being inconsistent with the Framework of Principles.

  21.  The statistics of one Chambers in London revealed that appreciably less than 30% of Crown Court cases received were sent prior to the PCMH. Of those that were sent to that Chambers after the PCMH a large proportion were weeks after the PCMH.

  22.  It is the clear view of the CBA that the speed at which the CPS have deployed their HCAs is too fast. In the CPS's Business Plan for 2007-08 a minimum target of 18% of Crown Court work to be undertaken by HCAs was set. 18% of Crown Court work by value amounts to far more than 18% of Crown Court cases. As is often the case with targets they provide perverse incentives. This is especially true in respect of HCA deployment. The drive to meet those targets means that lawyers are in Court rather than in the office reviewing and progressing cases. This leads to delays in cases being trial ready and has an inevitable and significant impact on victims and witnesses, as well as defendants who may well be in custody.

  23.  It is far easier to meet the financial targets if the CPS use HCAs to cover all the PCMHs and then return those cases where not guilty pleas are entered to the self-employed Bar. Such a practice means that the HCA does not attend the PCMH with any intention of being the Trial advocate. In those circumstances there is at least the risk that they will not prepare the case as if they were the Trial advocate. It also follows that such a practice, which is not in accordance with the spirit of the Criminal Procedure Rules, is also not in accordance with the reasons given for using HCAs in the first place (see paragraph 13 above). It is hard to see how undertaking a large volume of PCMHs will assist the quality of the CPS lawyer's advice in the police station nor will the lure of lists of PCMHs and Committals for Sentence be an attractive recruitment tool. The drive to meet financial targets means that the CPS look to assess whether a defendant will plead guilty or is likely to and if so then the CPS are likely to keep the case in house for as long as possible.

  24.  The practice of not instructing the Trial advocate until after the PCMH, and frequently not until weeks after the PCMH, creates the possibility for miscarriages of justice. One example of this was a robbery case last year at Snaresbrook Crown Court where an HCA undertook the PCMH on 11 January 2007 at which a direction was given for the Crown to serve a bad character application relating to the defendant's numerous robbery previous convictions by 8 February 2007. That case was returned by the HCA to the self-employed Bar at 5pm on 28 March 2007, which was the night before the trial. No bad character application had been made nor had the preparation been undertaken to obtain the details of those robbery convictions. It was clear that the case had not been prepared at all by the HCA but had been left, no doubt assuming that the defendant would plead guilty. Efforts were made to obtain the material relating to the previous convictions on the morning of trial and thereafter but the Judge refused the woefully late bad character application. The defendant was acquitted. This was without doubt because the jury were not able to hear of the defendant's bad character.

  25.  In addition the CPS will also frequently instruct a self-employed for the PCMH at the very last minute either the day before or sometimes on the morning of the PCMH. A recent example being the instruction the night before the PCMH of a self-employed advocate in a rape case, where the date for the service of the papers had been a month earlier. Although there was a single victim, there were three counts of rape and the instructions in the brief included the remarks: "It is highly likely that the complainant will retract | Despite my misgivings in the case, I am minded to charge the suspect |" There was insufficient time for the advocate to give detailed consideration to the obvious shortcomings of this serious and sensitive case before the PCMH hearing.

  26.  The discrepancy between the length of time that the CPS advocate is instructed when compared with the Defence advocate now represents a significant inequality and one which does not sit well with putting the victim at the heart of the Criminal Justice System. There is evidence that the CPS delay instructing a self-employed advocate to conduct the trial until substantially beyond the PCMH in the hope that the defendant will plead guilty. This has the obvious disadvantages that, first, the CPS will not always be able to instruct their trial advocate of choice at short notice and second, the trial advocate is prevented from playing a vital role in the pre-trial preparation of the case. In practice, in many cases, the first key principle of the Framework is operated on the basis that the trial advocate is selected as late as possible in contested cases.

  27.  In addition the drive to meet targets means that the CPS often instruct their HCAs as juniors in serious cases such as murders, drugs conspiracies and frauds. When instructed in such cases the HCAs normally have a distinct lack of Crown Court trial experience. This means that they are not able to provide the assistance so badly needed by the leading Prosecution advocate. On occasions when the leader for the Crown is not present (perhaps because he/she is in the Court of Appeal) it has been known for the Trial to stop because the HCA is not sufficiently experienced to undertake the trial on their own. Such delays are costly and not justifiable and do nothing to assist the public's perception of the Criminal Justice System.

  28.  The increasing deployment of HCAs is also creating a longer-term problem for the effective and efficient running of the Criminal Justice System. The impact of the use of HCAs is felt most keenly by the junior Bar. 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. The effect of this is something which should not be underestimated. A linked point is that many of the HCAs 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.

Is decision-making on charges or whether to prosecute effective?

  29.  As set out above the CBA does have concerns that the current budgetary constraints upon the CPS creates the potential incentive to under-charge or not to charge. Much of our information in this respect is anecdotal. There is no doubt that the Government's drive to bring more offences to justice brings with it the risk that it will be easier to bring less serious offences to justice than more serious offences.

  30.  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. This is because the decision over charge can frequently take a number of weeks to be made. These delays mean that cases do not get to Court as quickly as they should do and it also creates the possibility for some Defendants to commit more offences in the meantime.

How is the CPS managing key areas such as prosecuting rape and domestic violence?

  31.  The CBA is of the opinion that the CPS has, in general, improved the way in which it is managing rape and domestic violence cases. However, there is still much more that can be done. The CPS in London recently conducted an application process for barristers to apply to be monitored for the CPS London Rape List. However, having conducted that exercise the application process stalled for many months as there were insufficient members of CPS staff who were trained to undertake the monitoring. We are concerned that the CPS will not be able to provide sufficient monitoring to make this process work.

  32.  One very considerable issue which must be addressed by the CPS, as a priority, in relation to the prosecution of rape cases is the wide discrepancy between the payment for the advocates who prosecute and who defend. Following the introduction of the Revised Advocacy Graduated Fee Scheme in April 2007 the payment for Defence advocates and Prosecution advocates has differed. This is most apparent for rape cases where, for example, in trials lasting between five and 10 days (which is most rape trials) the Defence advocate is likely to be paid nearly double that of the Prosecution advocate. The inevitable effect of this discrepancy is that many advocates will wish to defend rather than prosecute those cases. At Appendix Two is a breakdown of four example rape cases to illustrate the difference in remuneration. Such inequality of payment cannot be justified for these types of cases that must be prosecuted by the most able and experienced advocates. It should also be noted that the Defence payment structure resulted from an independent review conducted by Lord Carter of Coles.

October 2008

APPENDIX ONE

CPS / BAR FRAMEWORK OF PRINCIPLES FOR PROSECUTION ADVOCATES IN THE CROWN COURT

OVERARCHING OBJECTIVES

  The Bar and the CPS are committed to working in harmony together, serving the interests of the criminal justice system, and ensuring the highest possible standards of advocacy and case preparation in the criminal courts in England and Wales.

  In the Crown Court, the CPS is intent on delivering an excellent prosecution service using high quality prosecutors drawn from the ranks of self-employed barristers and in-house Higher Courts Advocates (HCAs). The Bar and the CPS are committed to training of the very best standard.

  To help achieve these objectives the CPS and the Bar agree this statement and will abide by the Farquharson Guidelines attached to this Framework.

UNDERPINNING STATEMENTS

  The Bar understands that the CPS wishes to increase the number of in-house prosecutors with higher court rights of audience and also to deploy in-house prosecutors more often on the full range of case types in the Crown Court. This will provide career opportunities for employed barristers but will inevitably affect the amount of work available to the self employed Bar.

  The CPS recognises that the self-employed Bar provides a valuable service to the CPS by offering high quality self-employed barristers to undertake prosecution work. Self employed barristers bring wide experience and understanding to their prosecution work and the CPS is determined to ensure that there remains a flourishing self employed Bar with barristers of skill and ability at all levels who are willing and able to play their part in prosecuting a full range of work for the CPS.

  The CPS seeks to develop HCA deployment as an integral part of the whole prosecution function from community engagement, to advising police on major investigations, to making charging decisions, to undertaking case preparation, to dealing with restraint and confiscation, through to advocacy in all courts. Crown Prosecutors will discharge these duties more effectively having gained suitable advocacy, and in particular trial advocacy, experience.

  Both the Bar and CPS recognise that for advocates to develop their ability to a high standard they need to be able to undertake a range of advocacy work commensurate with their developing skills, handling more difficult cases as their skills develop but only undertaking those cases, either alone or being led, for which they have sufficient advocacy experience. All advocates will require a range of work in order to develop their expertise.

  To assist this developmental process, there may be a greater interchange of advocates between the self-employed Bar and CPS, enabling practitioners to contribute to this essential public service from either the employed or self employed sectors.

  It is also envisaged that the Bar and CPS will continue to explore together initiatives, such as advocacy training, where there can be mutual benefit.

LIAISON BETWEEN THE BAR AND THE CPS

  The CPS and the Bar will continue to liaise at a national and local level. In particular:

    — The CPS and the Bar will, through the Advocacy Liaison Group (ALG), raise matters of concern and mutual interest affecting advocacy in the Criminal Courts, including training.

    — The CPS will alert Circuit Leaders and local Bars to any significant employment initiatives for the recruitment of HCAs by the CPS, so as to enable local Bars to discuss such initiatives with the CPS, and plan barrister recruitment.

    — CCPs or nominated representatives will meet with Circuit Leaders or nominated representatives on a regular basis (at Joint Advocate Selection Committees or otherwise subject to local agreement) to discuss the provision of advocacy services and to further the aims set out in this document.

    — The CPS and the Bar will share information about developments in their approach to advocacy quality assurance through the ALG.

    — The CPS and the Bar will continue to work to develop secure e-mail as a means of communication for the better conduct of CPS cases.

KEY PRINCIPLES

  The CPS and the Bar will work together to ensure that all advocates demonstrate high standards of advocacy in accordance with the principles set out below:

    1. The CPS will endeavour to identify those cases that are likely to be contested and will select the trial advocate as early as practicable. In such cases the trial advocate (whether external counsel or HCA) should be instructed as soon as possible after the case has been sent or committed to the Crown Court, and where possible at least 14 days before the PCMH, so that any necessary advisory work and case preparation can be undertaken in good time to ensure that the PCMH is effective for the proper and efficient future management of the case.

    2. In those cases identified prior to PCMH as likely to be contested, and where external counsel is instructed as trial advocate, he/she should conduct the PCMH wherever possible. Where this is not possible, the CPS must be informed at the earliest opportunity to enable suitable alternative arrangements to be agreed. This may involve instructing an HCA as replacement advocate for PCMH purposes, taking into account the HCAs ability to make decisions and give the court the assistance which the trial advocate would otherwise be expected to give. The trial advocate must ensure that the case is in good order, and discuss with the advocate undertaking the PCMH any outstanding issues or potential difficulties, and the directions which the prosecution will seek. HCAs will be expected to work on a similar basis.

    3. The CPS will endeavour to deliver instructions which:

(i)address the issues in the case including any strategic decisions that have been or may need to be made;

(ii)identify relevant case law;

(iii)explain the basis and rationale of any decision made in relation to the disclosure of unused material;

(iv)where practical, provide specific guidance or indicate parameters on acceptable pleas; and

(v)where a case is an appeal either to the Crown Court from the magistrates' court or is before the Court of Appeal, Divisional Court or House of Lords, address the issues raised in the Notice of Appeal, Case Stated, Application for Judicial Review or Petition.

    4. On receipt of instructions as trial advocate, external counsel will consider the papers and provide timely advice to CPS where appropriate, preferably within five working days of receiving instructions or within any other agreed timescale[2]. HCAs will be expected to work on a similar basis in order to identify quickly where further pre-trial work is required.

    5. Advocates who attend Court to present the case at the plea stage should wherever possible also be the advocate who attends at the sentencing hearing. Advocates who attend the substantive hearing at the Crown Court should wherever possible also attend any subsequent Court of Appeal hearing.

    6. External counsel should only return a CPS brief for trial in circumstances permitted under the Bar Code of Conduct (or any other applicable Code or Rules). If an advocate (whether external counsel or HCA) has professional difficulties which may cause a trial brief to be returned, he/she must raise these at the earliest possible stage with those responsible for the allocation of CPS briefs, to ensure that instructions are delivered which are well prepared and timely. He/she should also provide a full explanation of the reasons for the return. It is the intention of the CPS and the Bar that only rarely should PCMH briefs be returned and only in very exceptional circumstances should a trial brief be returned. HCAs will be expected to work on a similar basis.

    7. The advocate (where external counsel) must not give an indication or undertaking which binds the prosecution without first discussing the issue with the CPS. The CPS will, whenever possible, make available to external counsel a CPS lawyer or employee with sufficient authority to enable decisions (for example, as to acceptance of pleas) to be made promptly and efficiently. Where this is not possible, external counsel should ask the court to adjourn the hearing for a realistic period in order to consult with the CPS.

    8. The CPS will wherever practicable, seek to have trials fixed so that the advocate instructed can prosecute the case.

    9. It is essential that all advocates attending court make every effort to avoid being double booked in two or more different courts at the same time, wherever possible.

    10. All advocates will abide by the Prosecutors' Pledge on the delivery of services to victims.

    11. All advocates will seek to further the overriding objective of the Criminal Procedure Rules.

APPENDIX TWO

FEE COMPARISONS BETWEEN THE PAYMENT TO PROSECUTION AND DEFENCE ADVOCATES FOR A SAMPLE OF RAPE CASES

EXAMPLE 1

  Rape case involving a single Defendant. Prior to trial there was a preliminary hearing, a PCMH and two mentions. The trial lasted 5 days with 185 pages of evidence and 12 witnesses and 6 units of taped evidence. After the trial there was a sentencing hearing.

  The Prosecution advocate will receive a total of £2,305.69 (plus VAT) for all of the preparation work and for attending all of the hearings and the trial.

  The Defence advocate will receive £4,597.92 (plus VAT) for all of the preparation and advisory work and for attending all of the hearings and the trial.

EXAMPLE 2

  Rape case involving a single Defendant. Prior to trial there was a preliminary hearing, a PCMH and one mention hearing. The trial lasted seven days with 201 pages of evidence and eight witnesses and nine units of taped evidence. After trial there was a sentencing hearing.

  The Prosecution advocate will receive a total of £3,086.59 (plus VAT) for all of the preparation work and for attending all of the hearings and the trial.

  The Defence advocate will receive a total of £5,730.68 (plus VAT) for all of the preparation and advisory work and for attending all of the hearing and the trial.

EXAMPLE 3

  Rape case involving two defendants. Prior to trial there was a preliminary hearing, a PCMH and two mention hearings. The trial lasted 10 days with 311 pages of evidence and 18 witnesses and 17 units of taped evidence. After trial there was a sentencing hearing.

  The Prosecution advocate will receive a total of £4,647.70 (plus VAT) for all of the preparation work and for attending all of the hearings and the trial.

  The Defence advocate will receive a total of £8,216.66 (plus VAT) for all of the preparation and advisory work and for attending all of the hearings and the trial.

EXAMPLE 4

  Rape case involving three defendants. Prior to trial there was a preliminary hearing, a PCMH and three mentions. The trial lasted 15 days with 480 pages of evidence and 24 witnesses with 29 units of taped evidence. After trial there was sentencing hearing.

  The Prosecution advocate will receive a total of £11,590.52 (plus VAT) for all of the preparation work and for attending all of the hearings and the trial.

  The Defence advocate will receive a total of £15,048.99 (plus VAT) for all of the preparation and advisory work and for attending all of the hearings and the trial.








1   See Criminal Case Management Framework for the Crown Court at http://ccmf.cjsonline.gov.uk/downloads/Part%202%20-%20Crown%20Court.pdf Back

2   As per the Farquharson Guidelines Back


 
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