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


Examination of Witnesses (Question Numbers 122-139)

GILLIAN GUY AND PAUL FARMER

3 FEBRUARY 2009

  Chairman: Ms Guy from Victim Support and Mr Farmer from Mind, thank you very much for joining us this afternoon. We are particularly keen to hear from you. Dr Palmer, is going to begin.

  Q122 Dr Palmer: Thank you for coming. One of the things that we all run into as constituency MPs is the expectations of victims of the criminal justice system. How realistic do you both feel that they actually are?

  Gillian Guy: I think that the expectations from victims and witnesses tend to be what we give them as expectations, and we spend the rest of our time perhaps trying to live up or down to them depending on what their experience actually is. A lot of that is about having set out our stall as putting victims and witnesses at the heart of the criminal justice system when actually that is very hard to prove to anybody who then goes through the system because it is process driven rather than people driven, and that is what we spend at Victim Support a lot of our time trying to change the balance on in terms of how those people perceive and experience what justice is for them. I think, insofar as the Crown Prosecution Service is concerned, there is a great deal of power that resides in the CPS, which is seen by victims and witnesses, and yet it is not fully explained to them, actions are not fully explained to them, and so they are immediately up against a lowering of expectation or a dashing of those expectations as they come through. Obviously, the CPS are part of a much wider system. There are about 13 agencies, all with different protocols, as we have just heard, different procedures, cultures and expectations themselves of what the system will be doing, and it is a very difficult place for victims and witness to really understand what they are supposed to be getting. I suspect that they believe that prosecutors are there as their barrister, as their advocate, and that is not really properly addressed on their behalf and is not properly explained. Many times we get witnesses saying to us, "When am I going to meet my barrister? Why have I not got the same access to my barrister as the defendant has?", and, "Why do I have to deal with so many different agencies, whereas the defendant only has one advocate that they have to channel their process through?" I think the answer is that we really need to define what those expectations realistically can be within a criminal justice system and then seriously live up to them.

  Paul Farmer: I support much of what has been said. I would go a little further to suggest that in many cases people with an experience of mental health problems have quite low levels of expectation because of their constant experience of trying to seek access to justice only to be turned away. A lot of the work that we did in our Another Assault report, which I know is referred to in our submission to you, suggested that significant numbers of people experience victimisation and harassment but are fearful of contacting the criminal justice system in that broadest context because they feel they will not be believed, they feel that their evidence will not be taken seriously, and I think for those people who experience mental health problems, the access to support and help from the criminal justice system which they and we all see as fundamental part of our citizenship is often denied to them. Although I know post bags are often maybe full with people who feel as though they have some right to pursue cases which, on the balance of probability, may not be the appropriate ones for a system to be pursuing, I think we would argue that in far more cases people are not even making contact with the system because of their poor experiences.

  Q123  Dr Palmer: We received a copy of the Prosecutors' Pledge. Does the victim see this pledge at any stage? Is it given to them at the beginning? Do they see it at all?

  Gillian Guy: I think it is potentially one of those issues that is not consistently applied. I think a key theme running through what I want to say on behalf of victims and witnesses would be about inconsistency and about the differences of approach and a lot of dependency on action of individuals and personalities as opposed to being able to understand the system in full. As far as the pledge is concerned, I cannot say how many people see it. I could speculate as to how many people would understand it and recognise it. I think that some of the issue is putting words on paper which do not match how it actually feels to be a victim and a witness. One of the things that we clearly feel very strongly about are special measures in court where, quite clearly, people are not being identified for those special measures at all sometimes, and we have discovered ourselves as the witness service 18,000 people on the day are coming to court who should have been identified for special measures: so they have been failed on two occasions coming through the system and they are then in a court process without that assistance. We also find that notification and applications are made too late, when the courts have no choice, according to their discretion, but to refuse those applications, and we also find that people have no idea what it is they might expect in good time to prepare for the special measures that they might receive in court. That is but one example of where, following on from that theme, expectations are not realised. I also think there are issues around the pledge of the training that is given in order for the legal profession, from which we have just heard, to actually be able to relate to people rather than process and be clear about what it really feels like—and I use that word again—what the impact is of the justice system on individuals, and I also think that there is a cultural issue in those organisations (and I have mentioned the 13 different agencies involved) in actually seeing that victims and witnesses are the most important element of that system.

  Paul Farmer: In the context of mental health, I think special measures are extremely rarely used with people who experience mental distress or mental health problems, and the understanding of the Prosecutors' Pledge, in most cases, will be quite limited by victims themselves. I think this is particularly relevant in the context of the way in which evidence of previous psychiatric history is utilised, where the pledge is very clear that prosecutors have a responsibility to protect victims from unwarranted attacks on their character, and yet in many cases we have found, from work that we did, that previous psychiatric history was being used inappropriately to discredit or undermine the effectiveness of the evidence from a witness.

  Q124  Dr Palmer: Among the pledges are "where practical seek a victim's view when considering the acceptability of a plea". As I understand the system, correct me if I am wrong, the decision is sometimes taken after only informal contact with the CPS. The police may decide simply to give a caution. I have a constituency case where a child was allegedly beaten up and the police officer decided that the adult had been mildly provoked and just issued a caution. The alleged victim was not consulted there. Do you feel there is a gap there? Should this pledge apply to the police as well, or is it sufficiently covered by them consulting the CPS?

  Gillian Guy: I believe there are two issues there. One is whether it actually happens under the pledge with the CPS (and again I use the terms "consistency" and "individuals" and "individual approaches") because in some instances prosecutors will go to great lengths to have that consultation and we know that victims then feel quite valued in the process, they understand what has been going on and they appreciate that. We also know in other instances they are not consulted and sometimes not even told, and that includes the family as well as the victims themselves. As far as extending it to the police, I think if we have standards of behaviour for the system throughout for victims and witnesses they should apply to all agencies in it.

  Q125  Dr Palmer: Another set of victims of the system are people who are wrongly accused. We do get cases where people appear to have waited an inordinate amount of time, like a year, to be told that they will not be prosecuted and sometimes—and this is very anecdotal—there will be a question, where an accusation seems to be fairly frivolous, that it actually takes longer to dismiss because the CPS feel: "This is a minor case; I will get to it sometime." Do you feel that it would be helpful if the CPS had a screening process to rapidly dismiss obviously frivolous allegations?

  Paul Farmer: It is not something we would have a view on, I do not think.

  Gillian Guy: I think there would be a long argument as to what amounts to frivolous accusations, which I probably should not get into here. I think that anything that helps the system to act more effectively and quicker, so that people understand what is happening, would be good and, of course, the interests I would be looking at there would be of the witnesses waiting in the wings, who will be clearly stressed by whether they have to come forward and be witnesses or not, and the sooner they know that and know whether they have been deemed to be frivolous, perhaps with an explanation as to outcome, the better.

  Q126  Julie Morgan: I notice that with certain victims of sexual abuse, for example, or domestic abuse, if a charge is withdrawn this can be extremely devastating. Do you feel that the CPS usually deal with that situation as well as they can?

  Paul Farmer: I think this comes back to the question about the interface between the various arms of the criminal justice system. Often the individual agencies are trying to get the process working in the most effective way, but there seems to be a lot of problems and barriers on the way to helping these things happen most effectively to the individual, and it is the individuals, whether they are the witnesses or the victims, who are quite often carried along. A number of people in our survey talked about their experiences, feeling as though they were passengers in a system which was being driven by other people rather than the system being there for them themselves. I think the question of pace is an important one for ensuring that people are treated with dignity and respect as well as being treated appropriately, justly and fairly.

  Q127  Julie Morgan: Ms Guy, do you want to say anything on the more specific point that Ms Morgan raised about where, for example, a rape or sexual abuse case cannot not proceed and the way the victim is dealt with?

  Gillian Guy: I think the word used was "usually", and I think this is a consistent theme of mine really, which is that there is not necessarily a usual situation. There are people who understand the ramifications of that and will go, as I said, to great lengths to give the explanation, and it is a very difficult situation to deal with for a victim who may then suffer further victimisation as a result of having pursued a case; so it does require as well joint working across agencies to pick up that issue and be able to communicate, not just with the victim, but with those other agencies as well to be able to help. I would say that from the previous evidence our experience is that co-location of agencies actually helps in that kind of working just to make sure that that communication happens and also that the people perspective is put into the system at every possible opportunity.

  Q128  Alun Michael: Could I stick with this business of the victim's experience. I wonder if we could sharpen up on what is needed. You have both made reference in the questions to the Prosecutors' Pledge, and I would like to be clear what the problem is. Are you saying that there are issues with the pledge and what it covers, or are you saying the aspirations are right but it is not what drives the way that prosecutors operate?

  Gillian Guy: I believe that the aspirations are right. Indeed, when you read the aspirations they are very difficult to disagree with. I will not slip into anecdote, but I remember first joining Victim Support, having a meeting with the DPP and being presented with the Prosecutors' Pledge, and I thought, "Fantastic; so it is going to be a good experience then." My experience after that—

  Q129  Alun Michael: You have recovered since!

  Gillian Guy: Yes, I have learnt a bit since then. I think really it is about words on paper being given life; the people expected to give that life actually being given the tools to do it; so that it is no good saying to a prosecutor, "You were that type of prosecutor yesterday and today you are going to be like this", and we see a difference when there are new people coming into the CPS, for example, as opposed to people who may have been there for a very long time who are expected to change their very thinking process. I think that is very difficult.

  Q130  Alun Michael: Sure, but I am trying to get it how we use this. Is this something that is not sufficiently built into the targets and the performance expectations within the department and, therefore, is ineffective, is it something that you think is hung on the wall in the average prosecutor's office or carried around in the wallet as something that is valued and important, or is it just something that is produced when you meet a new victim's concern?

  Gillian Guy: Probably all of those, and that is the consistency point. I think it is something that can work, but, first of all, the leadership has to be about, "We will make this work", and then the support has to be about, "We will give people the wherewithal to make it work." I recently spoke at a CPS conference, and what struck me was that there were modules of training for prosecutors who would be dealing directly with victims. I would argue that you do not necessarily have to deal directly to understand what impact you are having, but let us just take that. Those modules have been taken up by something 20% of prosecutors. They have been made more mandatory than they were in 2001, and, obviously, we are keeping an eye on what mandatory actually means and what impact that has, but the question there has to be after that is: "How does that change the behaviour of prosecutors and how are we actually monitoring that" This does not stray into all of those other areas, but whenever we have something that is written either as legislation or as guidance, we do not tend to follow up and evaluate the impact that that is having, and I think that the leadership needs to take that evaluation into account.

  Q131  Alun Michael: So your criticism is not of the Charter as such, it is that it needs to be seen as important and it needs to be driven within the service?

  Gillian Guy: My criticism is: I sat at a meeting with a prosecutor who said, "I have got to talk to a witness and tell them they will not be credible. I cannot do that. It is not the job of a prosecutor."

  Q132  Alun Michael: As far as complaints are concerned, what is your experience when people have not met the expectations that a victim from the Prosecutors' Pledge might reasonably expect?

  Gillian Guy: I think complaint is a whole other issue in the criminal justice system.

  Q133  Alun Michael: I am coming on to it, so I am asking for the relationship between the pledge and the complaint.

  Gillian Guy: I would wish anyone luck who wanted to see their complaint through, and I would like to see that there was a channel that enabled people to understand where the complaint was going to be handled, that it was not their problem to understand who they had to send the complaint to in the system and that once the complaint had come through they would be assured of a change in procedure so it would not happen to them or anyone else again.

  Q134  Alun Michael: Yes. The answer did not relate to the pledge to a complaint.

  Gillian Guy: I would include the pledge in that.

  Q135  Alun Michael: You would merely include it within it?

  Gillian Guy: Yes.

  Q136  Alun Michael: The other thing in relation to following up where the experience of the victim is not what is supposed to happen, we had a document on the Code of Practice for victims of crime from the Office for Criminal Justice Reform, which points to, I think, ten service providers and, when it comes to the question of how to complain, provides ten different avenues of complaint. Given that the two of you have referred several times in your answers to the criminal justice system as if it is a single system, is this satisfactory? Should it be changed? Should there be a single complaint system for the whole of the criminal justice system? What is the way forward?

  Gillian Guy: I think that the important thing is that people receiving complaints want to receive them and act on them. In order to demonstrate that a complaints procedure has to be as clear and simple as possible and it should not be the job of a complainant to work their way through. The problem with the code is that, as you have rightly identified, there are many avenues to go and complain into and, very often, someone going through this system, which as you say has many parts, will not know which person has let them down or which organisation has let them down and will not know where to go. If they do not give up at that stage on trying to find out who to complain to, they then have to trot along to an MP and go to the Parliamentary Ombudsman. Our information is that in the three years in which that code has been around the complaints to the Ombudsman are in double figures. I do not think that the complaints about the criminal justice system are so few.

  Q137  Alun Michael: Which demonstrates?

  Gillian Guy: Which demonstrates that there is not much getting through to the Ombudsman, because it is yet another hurdle for a complainant to get over. So the short answer to your question is, yes, I think there should be a straightforward single complaints system.

  Q138  Alun Michael: What do you see as the role of the prosecutor, which is the reason that I started with the pledge? Should the prosecutor be managing that victim's experience. Is there a role there?

  Gillian Guy: Yes, I think there is. Every person who plays a part in the experience of a victim and witness going through the justice system has a responsibility to look after that experience.

  Paul Farmer: We would absolutely agree that there is a role for the prosecutor in ensuring that their experience, particularly as a witness as opposed to other formal parts of the criminal justice system who might be considering their experience as a victim, need to receive the appropriate degree of help and support. We would also support a single-track complaints procedure. Many people have to go to great lengths in order to pursue their complaint as a victim and if they find themselves unfairly treated, in their view, then we should make it as straightforward as possible for them to pursue appropriate complaints. At the moment it is a mine field.

  Q139  Mr Heath: It is a very brief point, but it is a concern of mine. I have sensed from my contact with victims over the years that there are occasions in which the police actually find the Crown Prosecution Service a convenient whipping boy and will say to the victim, "We have done everything we can, but we really cannot understand why the CPS has not prosecuted", and that puts the CPS, does it not, in very difficult position in actually trying to communicate to a victim what the situation is in regard to their case if they appear to have the police saying, "That is a load of nonsense. We know better." Is there a way of making sure that the different elements in the system actually give the same explanation and understand one another's problems in this respect, because surely that must be better for the victim at the end of the day?

  Gillian Guy: I would say that would be a laudable aim for the system. I think what it actually points to is that it should not be the criminal justice system, it should be a criminal justice service and that that service then will have its outcomes and its objectives that all of the agencies that are party to that need to sign up to, and that is when they can start supporting one another, and working in co-location situations, working together for those common objectives, helps with that situation. What has happened so far is that the separation has enabled people to pass the buck.

  Paul Farmer: Our experience is that people's experiences of the police and the CPS are equally poor and equally good: where it worked it did not work because of one or the other, it worked because they were working together as a team, and, of course, in the extreme circumstances where this does not work, such as the case that has recently been in the High Court, FB v DPP, where really the lack of the CPS's ability to be able to pursue a case—effectively having cold feet because they felt that the key victim was not a reliable witness but not actually putting in place appropriate support for that witness which could have made the whole process much more effective—has led the CPS to be found to be acting unlawfully and in contravention of the Human Rights Act.



 
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