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

Memorandum submitted by Nicola Padfield, Senior Lecturer, Fitzwilliam College, Cambridge


  1.  I am a Senior Lecturer at the University of Cambridge, a Fellow of Fitzwilliam College, Cambridge and I also sit as a Recorder in the Crown Court. I am also the legal adviser to the Independent Hate Crime Scrutiny Panel, set up by Cambridgeshire CPS, which is composed of representatives of minority communities, in order to review CPS hate crime files.

  2.  The Crown Prosecution Service is still young. The first few years were marked by managerial and financial problems, and there can be no doubt that the Service has become hugely more professional in the last decade. Its website is particularly impressive: openly providing guidance in areas of law which Parliament has somewhat irresponsibly cloaked in fog (see Spencer, "The drafting of criminal legislation: need it be so impenetrable?" (2008) 67 Cambridge Law Journal 585). Here are some areas I would encourage the Committee to explore:

  3.   The decision to charge. I well understand why Glidewell's Review of the CPS in 1998 and Lord Justice Auld's Review of the Criminal Courts in 2001 recommended earlier involvement of the CPS and greater clarity in the relationship with the police, but I would encourage the Committee to re-read as well the report of the Royal Commission on Criminal Procedure (chaired by Sir Cyril Philips, 1981) which led to the creation of the CPS in the first place. Questions of accountability remain fundamental. Independence needs to be maintained at both area and national level. For example, confusion may be created by the growing role of CPS Direct, which was responsible for around 35% of all CPS pre-charge decisions in 2007-08. How does this fit with issues of local (area) accountability?

  4.   The (continuing) decision to prosecute and plea bargaining. Obviously, plea bargaining, in an informal sense, lies at the heart of our system, hence the extraordinarily large discount given for guilty pleas. But these negotiations remain largely invisible to the public eye. The creation of the CPS Inspectorate in 2000 has introduced a very useful "check" into CPS systems: perhaps the Committee will also be looking into the terms of reference of this body. Here, as elsewhere, improved efficiency must not "lead" over human rights and due process.

  5.   Victims and Witness care. The Government's determination to "rebalance" the system in favour of victims can exaggerate the role of the victim in the prosecution process. For example, are the targets on "direct communication with victims" sometimes or potentially distorting decision-making? Another area of concern: pre-trial witness interviewing, which clearly needs careful evaluation.

  6.   Conditional cautions are now an important alternative disposal. Early research into these (see Blakeborough and Pierpoint, Ministry of Justice Research Summary 7, 2007) confirmed the "potential uptariffing effects" of conditional cautions. I hope the Committee will explore the extraordinary growth in simple cautioning, Fixed Penalty Notices, Penalty Notices for Disorder etc, let alone "prosecutors' fines" in conditional cautions. Whilst some energy is currently being injected into developing more consistency in sentencing, this ignores the fact that many more people are being diverted from the formal court system. The Committee will find much food for thought in Chapter 3 of the annual Criminal Statistics: for example, a 40% cautioning rate even for indictable offences. What are the safeguards here? Has any work been done to compare magistrates' guidelines on fines and on compensation with prosecutor's guidelines on conditional cautions? Are people being "set up to fail"? Anecdotally, I have heard that the level of prosecutors' fine often exceeds that which some defendants would be likely to receive in the magistrates' court? Has enough work been done assessing the impact of conditional cautions? Is it a good use of prosecutors' skills to involve them in this process? The continuing closure of small local benches of magistrates seems to me a great mistake: genuinely local and transparent due process should be encouraged. (I could also refer to the myriad civil protective orders such as ASBOs, SOPOS, and more recently, Serious Crime Prevention Orders in the Serious Crime Act 2007, and Violent Offender Orders in the Criminal Justice and Immigration Act 2008, which provide a maze of different and overlapping rules, which may sometimes appear as Parliamentary "knee-jerk" responses, and which are in urgent need of rationalisation/codification/consolidation).

  7.   Advocacy issues. The CPS is now establishing itself as a Service of "prosecuting advocates". I wonder whether enough work has been done on measuring advocacy quality, an important and difficult issue. Finding appropriate measures is not easy. The CPS is target driven: but the targets mentioned in the Annual Reports are not necessarily the most important. (I have long been concerned by the definition of "unsuccessful outcomes", for example). A review of the wider implications of the CPS becoming both decision maker and advocate is also needed: what are the due process implications? Are the wider implications for the independent criminal bar really welcome? Cutting costs in one area of the process have inevitable consequences for other parts.

  8.   Sentencing. Traditionally prosecutors have had little involvement in the sentencing system. Things have improved recently, as a result of the Court of Appeal's statements that counsel on both sides have a responsibility to make sure that the judge is aware of key guidance in this hopelessly complicated area. But the CPS Inspectorate recently called for a re-launch of the CPS "plea and sentence documentation scheme" in order to "raise awareness of what should be provided by the prosecution and the function it is intended to fulfill" (HMCPSI, November 2008). The Inspectorate was deeply critical of current practice. But I would go much further than this recommendation: serious research should be undertaken to explore whether there should be much greater involvement of prosecutors in the sentencing process (and indeed post-sentence, in early release decisions). An obvious comparison is with France: if the Committee can't watch an actual French court in action, they could see the film "10 e"me Chambre, Instants d'audience" by Raymond Depardon on the reality of life inside a Paris court[9], where the prosecutor is explicitly invited to propose a suitable sentence. Whilst the CPS may not currently be adequately funded to make realistic proposals, if they did, it would make defence pleas in mitigation more focused, and give the judge a clearer view of the options. Whilst judges might not think it is appropriate for them to take costs into account in individual sentencing decisions, prosecutors could be encouraged to propose more effective and less costly alternatives to imprisonment?


  9.  Obviously, "effectiveness" depends on what one wants to effect. There remains much confusion on the aims of the process. Narrowing the justice gap is not only about convicting more guilty people, but about producing a fair and just (well funded) system. I cannot resist a rather obvious conclusion. Criminal law (substantive, procedural, sentencing) is far, far too complex in this country. The CPS would be rather more effective if it was working in a less complex framework. The latest example might be the Criminal Evidence (Witness Anonymity) Act 2008, so complex that the only beneficiaries will be lawyers (but maybe not the over-squeezed practitioner). Or the Department of Transport's proposed graduated penalties for speeding: one can imagine prosecutors being diverted from more "serious" crime by negotiations over contested speeding cases.

  10.  Another example: The Master of the Rolls explicitly agreed with Wall LJ's recent comment in R (Noone) v Governor of Drake Hall Prison [2008] EWCA Civ 1097): "I cannot, however, leave the case without expressing my sympathy both for the "despair" which the judge felt when considering the statutory provisions in the case, and for the view which he expressed in paragraph 2 of his judgment: "It is simply unacceptable in a society governed by the rule of law for it to be well nigh impossible to discern from statutory provisions what a sentence means in practice". The argument in this court lasted for the best part of a day, and the respondent's correct release date has only emerged in a careful reserved judgment". A fair system is inevitably costly: but Parliament is adding hugely to the cost by constantly tinkering with the law. Perhaps the Justice Committee can return to the important matter of codification; and if that is a step too far, to consolidation.

  11.  I end by stressing that this is a swift response highlighting what I consider to be some key issues. They are questions, not answers: I welcome the Committee's inquiry.

24 November 2008

9   See, available with American subtitles! Back

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