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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