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


Memorandum submitted by the Senior Presiding Judge for England and Wales

RELATIONSHIP BETWEEN THE CPS AND THE JUDICIARY

  1.  The judiciary recognises that a strong relationship between it and the CPS can bring great opportunities for improvement to the efficiency of the Courts. However, liaison must remain within the boundaries set by the requirements of judicial impartiality and independence, the twin principles upon which the justice system hinges. It is also important that any liaison is even handed and does not interfere with the fair and impartial administration of justice, nor with the need to maintain an equally strong relationship with others who are interested in the criminal justice system, such as the defence community. For example, changes to rules of court are considered by a committee which includes representatives of all interested parties, including the CPS, legal professionals and victim support. The work of the committees is greatly enhanced by the contributions which are made by those who may have different yet valuable view points. Furthermore, the judiciary adopts a very cautious approach to liaison with the CPS on individual cases or classes of case; a Judge will never discuss any aspect of a case in the absence of the defendant's representative, save in cases in which an application concerning public interest immunity is brought. Subject to these considerations, since building effective relationships, at all levels, has been shown to have a positive impact on performance in the courts, the judiciary will consider all attempts at engagement which could yield positive results for the administration of justice.

  2.  The Lord Chief Justice and other members of the senior judiciary meet regularly with the Attorney General, as Minister responsible for the CPS, and the Director of Public Prosecutions. The purpose of such meetings is to discuss strategic issues and new policy initiatives in which the judiciary may be interested.

  3.  The Senior Presiding Judge for England and Wales, Lord Justice Leveson, has continued his predecessor's practice of holding monthly meetings with the Chief Executive of the CPS, Peter Lewis. This mirrors the established practice of meeting with other senior figures in the criminal justice system. Their relationship forms the apex of a formal system of engagement between the judiciary and CPS at all levels of the system. These meetings concentrate on more specific issues which affect the performance of the courts.

  4.  In November 2007, the Senior Presiding Judge wrote to all Resident Judges informing them of a new protocol asking them to hold routine liaison meetings between Resident Judges and Chief Crown Prosecutors. The Protocol, the operation of which will be reviewed if a quality assurance scheme for advocates is adopted by the CPS, does not seek to replace established meetings with court users' groups, typically including representatives from the CPS, judiciary, HMCS, the local Bar and solicitors, or informal meetings under the listing protocol. Local Criminal Justice Boards, which were established to ensure effective working across all criminal justice agencies, continue to operate.

  5.  In his letter to the Resident Judges the Senior Presiding Judge stated:

    "These meetings are not intended to replace existing court users' meetings but are designed to deal with any specific judicial concerns which are directed to the CPS. These may include the standard and timeliness of case preparation, and/or the standard of advocacy being provided, by both counsel instructed by the CPS and HCAs. I hope that you will find them a practical and constructive way of both communicating positive information about what is going well, in addition to dealing with what I understand may be real problems, but currently being addressed by different Resident Judges in different ways."

  6.  The protocol establishes a framework within which these meetings are to take place. It says that:

    "The preferred approach to dealing with performance issues is for the local CPS Unit Head to maintain regular contact with the Court Manager at the Magistrates' or Crown Court and, if necessary, the Resident Judge. This regular contact will address immediate performance issues such as an essential component of case management not being adhered to, possible importing or exporting of cases, adjustments to diaries if Recorders cannot be found, linking cases where there is a common theme, general process issues or reacting to sudden unexpected events such as bad weather or flooding.

    More formal communication lines need to be agreed between the senior local judiciary and senior CPS officials to deal with continuing or significant performance issues that cannot be resolved locally between the Unit Head and Court Manager.

    Regular and structured meetings are proposed so that performance issues can be discussed and that the relationship between the local courts and CPS can effectively support the delivery of criminal justice performance.

    This protocol is not intended to remove the need for regular meetings between all court users (including the bar and local law society) and should not be used for the purpose of discussing issues of wider significance which may impact on others (such as listing) or any individual cases (save specifically in relation to issues of CPS performance)."

  7.  The protocol was designed to provide a clear line for communication from local to national level. In broad terms, Resident Judges are invited to send minutes of meetings where they have raised concerns about the performance of the CPS to both their Presiding Judge (a senior Judge with administrative responsibilities for one of the 6 regional Circuits), and the Senior Presiding Judge. Presiding Judges are encouraged to meet their CPS Group Chair. If an issue cannot be resolved at a local level, the Senior Presiding Judge will then discuss the matter with the Chief Executive of the CPS.

  8.  The Senior Presiding Judge will also try to identify national trends—for example, whether the same CPS lawyer should see a case through from start to finish—so that he can discuss with the Chief Executive how best to implement new initiatives, or improve current practice.

  9.  It is important to emphasise that the protocol does not exist only to identify problems. There have been many examples where liaison meetings have helped to highlight best practice at a local level, which can then be disseminated nationally.

  10.  The judiciary is keen to maintain a constructive relationship with the CPS whilst bearing in mind the over-riding need to remain impartial and independent at all times. It views the creation of the protocol as an effective way to express its views about the way in which the CPS provides support to the courts. This relationship will be increasingly important as the number of CPS lawyers, and the complexity of work they take on, increases.

CPS LAWYERS AND APPOINTMENT TO THE BENCH

  11.  Eligibility for judicial appointment is governed by statute in relation to each judicial office. Originally this was couched generally in terms of having been a barrister (or in the case of some junior appointments a barrister or solicitor) for a specified minimum period—generally either ten or seven years. This approach was altered by the Courts and Legal Services Act 1990, which allowed solicitors to obtain rights of audience in the higher courts and changed the statutory eligibility requirements to reflect this. So for example, the qualification for appointment as a High Court Judge set out in section 10(3) of the Supreme Court Act 1981 was amended from being a barrister of at least ten years' standing to having a 10 year High Court qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990, or being a Circuit judge who has held that office for at least 2 years.

  12.  The eligibility requirements have been changed again by Part 2 of the Tribunals, Courts and Enforcement Act 2006, which reduced the statutory qualification periods to seven years where they had been ten, and to five where they had been seven, and introduced a new requirement that in order to count, a qualification period must be one in which the person concerned had, after qualifying (generally as a barrister or solicitor), gained experience in law. Section 52 of the Act sets out examples of what will constitute a `law-related activity' which will satisfy the test of gaining experience in law.

  13.  None of this specifically refers to those lawyers who are employed by the CPS, either to include or exclude them. But being a barrister or solicitor employed as a lawyer by the CPS for the required period of time would certainly bring someone within the terms of the statutory eligibility requirements for judicial appointment.

  14.  In addition to the bare statutory requirements, however, other factors are taken into account in considering who is appointable to particular posts. Some of this will relate to the particular type of post under consideration; so, for example, a vacancy may be for a specialist family judge, or a chancery judge, and only those with that specific expertise will be selected. In addition, it has been the policy of successive Lord Chancellors that before being appointed to a permanent salaried post, from which they will not readily be able to be removed, or to return to practice if the appointment turns out to have been a mistake, candidates for appointment should generally have at least two years' experience of a part-time, fee-paid judicial appointment, such as Deputy District Judge or Recorder.

  15.  This policy is not applied inflexibly and there are examples of exceptions to it, but it has the strong support of the Judicial Executive Board as a sensible and pragmatic general approach. Its benefits include helping to ensure that there are sufficient candidates for fee-paid posts, which are a vital part of the judicial system, and, most importantly, allowing potential salaried judges to test the water and find out whether they will enjoy or be any good at being a judge, which is not a role that suits everyone, before committing themselves to permanent appointment. If it turns out that the role does not suit them, they can unobtrusively stop fee-paid sitting and carry on with their practice, without any adverse inference being drawn.

  16.  However, this requirement that, in the normal course of events, people aspiring to judicial office will first test their suitability by obtaining fee-paid experience, causes a difficulty for employed CPS lawyers. They are eligible and welcome to apply for fee-paid appointment as Deputy District Judges in the county courts, dealing with civil disputes, but they tend not to want to, as their expertise is in criminal law. They would therefore like to be able to be appointed as Recorders, sitting in the Crown Court and trying criminal cases. This view is supported by the Attorney General and the Director of Public Prosecutions, but poses significant issues which remain to be addressed.

  17.  It is a fundamental principle of common law, reinforced now by the Human Rights Act 1998, that parties are entitled to a fair trial before an independent and impartial tribunal. No one is permitted to be judge in his own cause. The requirement extends far beyond cases where a judge has shown actual bias against a particular party, to those cases where there may be an appearance of bias. The Courts of England and Wales have said many times that it:

    "is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."[10]

  The most effective guarantee for the litigant is not that a member of the Tribunal will be disqualified on the grounds of actual bias or on the basis of automatic disqualification, although these protections remain important. Rather, it is that the right to a fair trial arises where the court examines all of the circumstances and concludes that there was a real danger or possibility of bias. Would the reasonable person, in possession of all of the relevant facts of the case, think that the judge or jury member might have unfairly regarded the case of one of the parties appearing before the court?[11]

  18.  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. In R v Abdroikof & Others[12] the House of Lords considered the position of a CPS lawyer sitting on a jury. It held that:

    "justice is not seen to be done if one discharging the very important neutral role of juror is a full-time, salaried, long-serving employee of the prosecutor."[13]

  There is a very strong likelihood that the reasonable man would sustain grave doubts as to whether an employee of the CPS could act impartially or without bias when sitting as a judge on matters in which the CPS was the relevant prosecuting authority. This view is supported by the jurisprudence of the European Court of Human Rights, which has held that the court must offer a guarantee to the defendant that is sufficient to exclude any legitimate doubt in respect of the impartiality of the court. Where an individual, having held office in the public prosecutor's department subsequently sits in the same case as a judge, and his particular post in the prosecutor's office may have led him or the department in which he worked to deal with a case now before him as a judge, the public are entitled to fear that the judge does not offer a sufficient guarantee of impartiality[14].

  19.  The above-mentioned jurisprudence does not reflect in any way on the character of those individual CPA lawyers who may seek part time judicial appointment; they might well set aside any preference they had for the prosecution, or even be personally disposed to favour the defence, but it would remain the fact that their decisions would be open to allegations of bias and impartiality. The position of those barristers in private practice who prosecute on behalf of the CPS, and also sit as Recorders, is fundamentally different. They are self-employed, not employees of the CPS, and even if they regularly prosecute, their position once they are sitting as a Recorder is wholly independent of the CPS, in a way that a CPS employed lawyer could not be.

  20.  Not all prosecutions are conducted by the CPS; some are brought by other enforcing agencies such as the Health and Safety Executive, the Environment Agency and the Department for Environment, Food and Rural Affairs. CPS lawyers could sit in those cases as Recorders and one CPS Recorder has already been appointed on this basis. However, the volume of this work is small in comparison to the whole, and is not focused on a single court centre or circuit, making it impossible to justify additional appointments of this kind. Most courts cannot list enough non-CPS prosecution cases to provide work for a CPS Recorder.

  21.  It is true that in some cases, mainly civil cases, the judge will declare some slight prior knowledge of the issues or of a party, or witness, and will nevertheless carry on sitting, with the agreement of both sides. It has been suggested that this principle might perhaps form the basis of a `waiver' scheme in which defendants in criminal trials would be invited to consent to being tried by a CPS Recorder. It seems highly unlikely that any scheme in which defendants were systematically invited to waive their Article 6 rights to a fair trial could be upheld by the Courts, and also very difficult to see what incentive defendants would have to waive their rights in this way. It would not increase the efficiency and effectiveness of the justice system if criminal trials were regularly aborted on the discovery by the defendant that the judge who was to try him was a CPS lawyer.

  22.  The view of the Judicial Executive Board is that those CPS lawyers who are keen to gain judicial experience should be encouraged to apply for the many fee-paid lawyer posts in the tribunal system, or as Deputy District Judges in the county courts. They can then still go on to salaried appointment in due course if they are selected on merit. But the objections to their sitting as judges in criminal cases prosecuted by their employer are fundamental, and even were we to try to go along this path, we would risk an adverse decision of the ECHR in due course.

Rt Hon Lord Justice Leveson

Senior Presiding Judge for England and Wales

February 2009











10   As per Lord Hewart C.J in R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256 at page 259 Back

11   See the test as set out by Lord Goff in R v Gough [1993] AC 646 as applied in Locobail (UK) Ltd v Bayfield Properties Ltd & Others (Conjoined Appeals) 2000 Q.B. 451 and approved in Re Medicaments & Related Classes of Goods (No 2) 2000 All ER (D) 2425. Back

12   R v Abdroikof (Appellant) and Another, R v Abdroikof and Another (Appellant) and R v Williamson (Conjoined Appeals) [2007] UKHL 37. Back

13   As per Lord Bingham at paragraph 27. Back

14   Piersack v Belgium [1983] 4 EHRR 169 Back


 
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