Examination of Witnesses (Question Numbers
100-119)
PETER LODDER
QC, TOM LITTLE
AND CHRISTINE
HASWELL
3 FEBRUARY 2009
Q100 Mr Tyrie: I am sorry to interrupt,
but you just said a moment ago there is no evidence that they
are saving money.
Peter Lodder: No, because I do
not think there has been a proper analysis of how much it is costing
to pursue this course. Can I make what may appear to be a slightly
superficial observation? When you employ someone in-house you
have a number of structural costs, of which I am sure you are
aware—the building, the secretarial support, whatever it
is, sick pay, holiday pay, pensions, et cetera, et cetera—and
you also have, once you have recruited someone, the liability
to continue employing them; whereas if you come to the independent
Bar you can pick them up and drop them as you wish.
Q101 Mr Tyrie: Had you not better
set to work doing that number crunching on behalf of your members
ASAP if you want to make the point that there maybe hidden costs
which are not embedded?
Peter Lodder: It is a one-sided
exercise, is it not? We need the data. We do not know how much.
Q102 Mr Tyrie: Had you not better
write down the data you need, send it to us and we will do our
best to have it made available?
Peter Lodder: We would be very
happy to do that.[1]
Q103 Mr Tyrie: That would be a first
step. I think a second step that might be helpful is trying to
establish, since you agree that there is, in principle, some benefit
to in-house advocacy, telling us where the optimal point is. You
have argued that it is not zero and you are presumably going to
argue that it is not 100, so it must be somewhere between nought
and 100% and there must be some explanation for a view that lies
somewhere between those, and I would be grateful to see that.
Peter Lodder: I would be very
happy to assist you with that. I do not think one can fix it precisely.
Interestingly, certainly the last Director was most reluctant
to commit himself.
Q104 Chairman: We are not asking
the Director, we are asking you.
Peter Lodder: I understand that.
Q105 Mr Tyrie: Good; we have got
that far. That leaves one last question, it seems to me, from
what I have heard. At one point you seemed to set aside these
arguments, or at least deflect them a little, by saying in any
case it is all happening too fast.
Peter Lodder: Yes.
Q106 Mr Tyrie: That is correct?
Peter Lodder: Yes.
Q107 Mr Tyrie: When you have established
for us what this equilibrium point might be, do you have a view
about what speed it could take place at which would be sensible
or optimal?
Peter Lodder: Can I take that
point, with your last point, and say that what we are dealing
with here is the concept of justice, and the concept of justice
does not easily fall into an economic assessment because justice
is a general thing, a general concept, but in simple terms the
speed at which what is happening at the moment is too rapid because,
for example—let me come back to what Christine was saying
about her members—we have a situation where, because people
are being taken out of the office and put into court as often
as is possible, those who are left in the office are under greater
stress because there are not enough of them. Under stress they
then do not do what they might do to get the files up to the requisite
standard, the stress comes back through the system because, for
example, it goes to court, the judge throws it out because the
file has not been properly prepared and it comes back down through
the system.
Q108 Chairman: These are assertions.
Is there evidence to back this up?
Peter Lodder: I cannot give you
a specific case where a judge has, for example, thrown this out
in terms of naming it, but I am aware of it. I am aware of it
from what judges have said as to their experience.
Q109 Mr Tyrie: Sir Ken Macdonald
has said that when allegations of poor quality CPS advocacy have
been looked at in more detail they have been found to be the same
cases that are being reported several times.
Peter Lodder: I cannot comment
on which ones he has looked at or someone on his behalf has looked
at, but I can tell you, in my direct experience, of cases in the
north of the country in recent times. For example, a rape file
came through to a court and the judge discovered that there was
no statement from the complainant in it.
Q110 Chairman: I think what we would
need to be convinced by this line of argument, and I do not expect
you to do it just now, is to be directed towards some measurable
evidence that the situation in this respect is worse than it was
before the present level of in-house advocacy.
Peter Lodder: I understand that.
May I say, there is a difficulty for us as a profession providing
this material, which is that it stems from those who act on the
part of the CPS and there is an obvious reluctance to indicate
these issues because of livelihood.
Q111 Mr Tyrie: Well you had better
tell us what we need to ask and we will get on with it.
Peter Lodder: May I invite you
to consider this? How many judges have you got coming before you
to explain their experience? They are in a position to tell you
of their direct experience without any fear concerning their either
being partisan or indeed their income.
Chairman: We have another area that we
need to move to and I am going to call on Dr Whitehead.
Q112 Dr Whitehead: This question
is particularly for Christine Haswell. In the PSC evidence you
raised the issue of the question of the relative roles of the
CPS and other agencies in criminal justice system and the extent
to which there might be either tension or confusion between those
roles. You mention, for example, the possible confusion about
police and CPS roles within witness care units and also the perception
of CPS independence, where they are working in single work spaces
together, and whether the claimed efficiency saving might, on
the other hand, threaten CPS independence. Do you think there
is a challenge facing the CPS in terms of its perceived or actual
independence in working with other organisations across the criminal
justice system?
Christine Haswell: Generally,
our members in the CPS do work well with the other parts of the
criminal justice system, but there is a big issue around co-location
projects. The Integrated Prosecutor Team Project in London is
one, and one part of that is to do with accommodation but also
the size of teams. In London they have had moved to small teams,
such as the ones that have been moved into police stations, and
have found that that had not worked and they have moved back to
a bigger office environment, for economies of scale, partly, and
other reasons. We have concerns. Bullying is reported to us by
our members as a bit of a problem in the service, and if people
are working alongside other parts of the justice system, people
who are doing similar jobs or with different terms and conditions,
this is causing, particularly in the police stations, tensions
and there is a potential there for bullying or problems in the
workplace. I am not saying this has necessarily happened, but
it has the potential to cause problems over independence of the
prosecution.
Q113 Dr Whitehead: Do you mean by
bullying, for example, "You must prosecute these people we
have detected", even if you are not absolutely certain this
is the best way to proceed?
Christine Haswell: I am not saying
that has actually happened, but there could be the potential there
for that if you have got very small teams of CPS located in a
much bigger environment dominated by other justice professionals,
yes. There is that potential.
Q114 Dr Whitehead: So do you think
that the whole question of co-location under those circumstances
is perhaps a bad practice to start with, or do you think there
are ways in which that experience and the effectiveness of the
CPS could be improved whilst perhaps working in co-located arrangements?
Christine Haswell: We have a policy
from the members on the ground that this is not a popular situation,
and although we have been involved in negotiating when these moves
have taken place—we have talked to Health and Safety about
accommodation and things like that—it is not popular.
Q115 Chairman: Are you saying that
co-location is not popular?
Christine Haswell: No, it is not
popular. Our members tell us that they would prefer to work in
a Crown Prosecution Service with other Crown Prosecution Service
and to keep that physical distance as well as, if you like, a
sort of structural distance.
Q116 Mr Heath: Are you saying that
CPS staff may be having direct professional contact with people
who are outside the CPS? I am not talking about an advocate discussing
a case with a police officer, or whatever, but are you saying
that a police officer might come into the office and say, "I
do not like the way you are putting that file together. Do this;
do that"? That seems to be very unprofessional conduct.
Christine Haswell: It does, yes.
We are concerned that there is the potential for that sort of
thing to happen more if you are talking about a very, very small
CPS team in a much bigger environment like that. People feel,
as they report to us, happier in a Crown Prosecution Service environment.
As well as the cultural differences, there are different terms
and conditions. In some of the roles in witness care, for example,
the job description is almost the same and yet you have got these
people on different terms and conditions, and, of course, in things
like witness care and in the court you have actually got the third
sector, the voluntary sector, in as well. You have got the three
parts of people all doing ostensibly the same thing in a court,
which is a bit—
Chairman: We are waiting to hear from
what voluntary sector, so we are going to bring this session to
a close.
Q117 Mr Heath: I am sorry to interrupt.
I had not realised that there was any prospect of CPS staff not
being entirely responsible to their line managers.
Christine Haswell: They are; I
am just saying that there is this potential there. I am not saying
it has happened, but there is a concern that it could.
Q118 Mr Heath: I understand that.
Christine Haswell: I do not want
to cast a slur on the professionalism of—
Q119 Dr Whitehead: You have mentioned
in your evidence that the potential may arise from the fact that
there are different targets for the police and the CPS. The target
for the police is around detection rates, and what happens afterwards,
you might say, is additional to that target being achieved; whereas
the CPS has a target to reduce attrition rates by making sure
that only evidentially strong cases are prosecuted. I think the
essence of the question is, therefore, is that something which
is a structural problem for the CPS and the police co-locating,
or is it something that protocols and good working practices ensure
could be overcome?
Christine Haswell: Good working
practices are something that we get. The thing with the CPS, I
have found, is the union official has a lot of good policies and
good working practices, in theory, but sometimes the actual application
varies tremendously. One of the things that does hit me about
the service is that it is not necessarily always one service:
because in the 42 areas there does seem to be very different management
styles in the application of all sorts of policies, and sometimes
you can get something happening in one area although ostensibly
it is covered by the same policy because of the general culture
of practices that have grown up in offices and things are not
always---. Sometimes it is like you are hearing about two different
organisations because some roles have grown, in some cases the
use of different case workers, or it would be done by certain
caseworkers, might be done by slightly different grades where
there is an overlap in job descriptions and so forth. It has got
a good protocol, if you like. It would be terrific if it was always
going to be followed in the same way across the service in a consistent
fashion.
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