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


Examination of Witnesses (Question Numbers 80-99)

PETER LODDER QC, TOM LITTLE AND CHRISTINE HASWELL

3 FEBRUARY 2009

  Q80  Alun Michael: Do you think you should?

  Peter Lodder: I can see some value in it, yes, and certainly it is something which we as an association have always been welcoming of. I have to say, I do not go and bang the drum around individual sets of chambers either, so there is nothing partisan about that position.

  Q81  Alun Michael: How do you see the development of CPS advocacy, of professionalism that we have referred to already, affecting the future of the Bar as a whole? How do you see the future of moving between employed and self-employed roles?

  Peter Lodder: First of all, the Bar is increasingly focused on maintaining and developing high standards, so far as the criminal Bar is concerned, particularly in the area of advocacy. We run many educational programmes and you will be aware of the requirements that are placed upon practitioners to satisfy annually the requirements of continuing professional development. The objectives behind this are always to achieve the best possible quality of advocacy, and I appreciate that across a whole profession you will not always achieve it.

  Q82  Alun Michael: Forgive me though, if your membership from within the CPS is small and your objectives are to drive up the standards of advocacy generally, does that not imply that there ought to be rather greater even-handedness or recruitment across both sectors?

  Peter Lodder: So far as our association is concerned, there is no lack of even-handedness. The association is available for any practising barrister to join. I no more direct someone to join it at the self-employed Bar than I do if it is someone who is at the employed Bar; it is a matter for individual choice; they pay their subscription and they are members. There is no threshold which they have to overcome, bar being practising members of the criminal Bar. In terms of how we may develop in the future, I have already recognised the importance of a thriving prosecution service. 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 the comments of the previous Director when he spoke 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. I think all of that is laudable and it is, if I may say so, commonsense. From our point of view at the criminal Bar, the focus of our work is entirely upon advocacy, and therefore we encourage and seek to promote the highest standard of advocacy. We see our position as being one which can happily run alongside the development of advocacy within the Crown Prosecution Service. What troubles us is that the statements of where the Crown Prosecution Service wish to go do not entirely fit with the actuality of what they do. If you were, for example, to look at the framework, and you have seen the framework which is annexed to our submissions----. I wonder if I might just take you to it because I think it is helpful. This is a document which came about as an agreement between the Crown Prosecution Service and the Bar.

  Q83  Chairman: I do not think all members have that in front of them. We have copies of it but I do not think it is in front of us at the moment.

  Peter Lodder: If there are spare copies, I wonder if they might be handed out because I think it bears examination in the light of where we are now.

  Q84  Chairman: You are referring to?

  Peter Lodder: I am referring to a document which is entitled "Crown Prosecution Service".

  Q85  Chairman: Where in the document though?

  Peter Lodder: The second page, which flows on from a sub-heading called "Underpinning statements".

  Q86  Alun Michael: The second page of the annex?

  Peter Lodder: The second page of the annex, yes. The first full paragraph, "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", and it goes on to recite what having a self-employed Bar brings to prosecution work and to the Crown Prosecution Service. In the following paragraph it then talks of the development of HCAs as an integral part of the whole prosecution function from community engagement, and so on. May I go then to the last sentence of that paragraph: "Crown prosecutors will discharge these duties more effectively having gained suitable advocacy and, in particular, trial advocacy experience"—this is an agreed framework between the Bar and the CPS. The final paragraph on that page: "Both the Bar and the 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 if 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", and it goes on about interchange. Forgive me for reading in a rather lengthy fashion, but what this framework envisaged was what we would regard as a steady growth which, for example, aimed at ensuring that CPS advocates gain, in particular, as the document says, trial advocacy experience. The reality of targets is that they cherry pick where the budget appears to be most favourable, and so what one finds now is that in reality in-house advocates conduct almost all of the lists for plea and case management hearings 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, and so there is this distortion. I will not take you through it in detail but I do encourage all members of the committee to read this framework. It is an enlightening document. Another aspect of this agreement was that it was recognised that, consistent with good case management, the Crown Prosecution Service would identify the advocate for trial 14 days before the PCMH and, if that were not possible, certainly the trial advocate would be instructed very swiftly after the PCMH. In reality very few members of the Bar are instructed to conduct PCMHs and in reality, as we have set out in our document, often they are not instructed in trials until quite a significant time after the PCMH; and we highlighted in our written submissions examples of that and, indeed, one of them is a case in which Tom Little, our Secretary, was the prosecuting advocate. They are leaving it until the last minute so that important acts and functions are not, in fact, performed and this is in the interests of targets.

  Q87  Chairman: Are you saying that the targets conflict with what is the declared policy of the CPS?

  Peter Lodder: Yes.

  Q88  Alun Michael: Can I question that. Surely you would accept as well that getting cases before the court quickly, getting them dealt with efficiently and moving things on, is something that actually the court system has not been very good at in the past and there is some good reason for trying to improve its performance?

  Peter Lodder: Absolutely, I totally agree with that, but the thing is that if you are going to have that sort of initiative and that initiative is going to succeed, then these sorts of framework principles need to be followed. There is no point in advancing a system so that you have early management hearings and then finding that when you get to trial the system breaks down.

  Q89  Alun Michael: Finally from me, would you not accept that you should be arguing for the right balance between those things, rather than seeming to imply that the targets ought to go out of the window?

  Peter Lodder: No, I do argue for the right balance, but the reason I focused upon what I did in answering these questions is because the essence of your question was are they not, in fact, getting through the work, getting it done, achieving a successful outcome, and my argument, or my comment rather than argument, because I am not trying to argue, is actually it depends how you assess your outcome and is the outcome really the development of what the stated policy said it would be.

  Q90  Mr Tyrie: I want to try and summarise what I think you are saying. I will try a few sentences and you can interrupt or qualify each one as we go. You accept the principle that there are advantages to in-house advocacy?

  Peter Lodder: Certainly, yes.

  Q91  Mr Tyrie: You accept by implication that the CPS's decision to go down that route must be based either because they think it would deliver better justice or it would deliver the same quality of justice at less cost—or both?

  Peter Lodder: I think there are a number of reasons why the Crown Prosecution Service wish to pursue this policy, and one of them (and I think it is a perfectly legitimate policy) is to give the organisation as a whole a sense of purpose and a sense of identity. I think that one of the difficulties that the CPS laboured under for many years was that it felt that it was just a somewhat shambolic and often criticised organisation, and undoubtedly it has gone a long way since those days. There are also the other factors which you have mentioned, but I do not think it is one factor rather than the other; I think there are a number of issues there.

  Q92  Mr Tyrie: One can reorganise the CPS a hundred times in different ways—

  Peter Lodder: People did.

  Q93  Mr Tyrie: ---but at the end of the day you want to measure the output?

  Peter Lodder: Yes.

  Q94  Mr Tyrie: And the output is measured in quality of justice per unit of cost, is it not?

  Peter Lodder: Yes. I am interested as to exactly how that measurement can be made.

  Q95  Mr Tyrie: That is a difficult question, but by implication of everything you have just been saying, it is an attempt to do so, is it not?

  Peter Lodder: Yes, I agree.

  Q96  Mr Tyrie: That is why I am trying to get you to agree or continue to disagree with the conclusion that the CPS, although they may also decide that there are various organisational reasons for doing this, have at the root the objective of securing either better justice or the same quality of justice at less cost?

  Peter Lodder: I am not at the moment persuaded that it is at less cost, because I do not think it has been properly costed, which is why I made the observations I made at the beginning. It may well be that, for other reasons, it is worth paying that cost, but I think that the focus has become so finely pointed at targets that I think the cost implications have become somewhat blurred.

  Q97  Mr Tyrie: Let us put the cost issue to one side and come back to that in a minute. Are you persuaded that they are at the moment capable of doing this at the same level of quality of justice?

  Peter Lodder: That is a difficult question to answer. There are some extremely good practitioners in the Crown Prosecution Service.

  Q98  Mr Tyrie: But the fact is you do not have a clear-cut answer, which is, "No, I think the quality of justice is declining"?

  Peter Lodder: My personal view is that I do think the quality is declining, yes, but I do not think that that means that their objective is not to try and raise it; I think their objective is to see that, and they have some people who undoubtedly can, but in general terms I think it is too much of a mix.

  Q99  Mr Tyrie: I am trying to get to the bottom of your concern. It seems that you are now saying that the quality of justice is declining and it is costing more money?

  Peter Lodder: No, I think the quality of justice will decline if—



 
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