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


Examination of Witnesses (Question Numbers 260-279)

STEPHEN WOOLER CB, SALLY HOBBS AND JERRY HYDE CBE

10 FEBRUARY 2009

  Q260  Dr Whitehead: You may have hinted at this in your description of the joint work which you have done. Are there systems in place in general which can take out of those judgments areas of good practice and promote those to the Service as a whole or would you describe what you are doing as perhaps exhortation as a result of your experiences in very general terms?

  Stephen Wooler: The development of good practice is an area on which I would want to see more work being done. Certainly the CPS overall is very responsive to our reports. I have been discussing one in recent days with the chief executive relating to the CPS handling of complaints. That is a very important issue and the report has not been published yet so I do not want to go into any detail. What I can be quite confident of, even at this stage, is that we have found areas where it needs to be improved. Those are being taken very seriously and as a result progressively over the coming period there will be a substantial review of practice and procedure within the CPS and I would expect an improved system to come about. That is at the national level. In terms of one of the products of inspection being the promulgation of good practice, I have to put my hand on my heart and say we could do more on that and I would like to get to a stage where the CPS actually has the resource to work with us on that. It has gone off; we were better at it about three or four years ago than we are now.

  Q261  Julie Morgan: How well do you think the CPS does work with witnesses and victims?

  Stephen Wooler: Over the last 10 years the treatment of victims and witnesses in the criminal justice system as a whole has gone forward quite considerably. Having said that, there is absolutely no scope for complacency. There has been a whole raft of initiatives across all the criminal justice agencies. If I may just digress again, we have recently completed with two other inspectorates a review of the treatment of victims and witnesses across the whole of the criminal justice system. We were working with the Inspectorate of Constabulary and we were working with the Inspectorate of Courts' Administration on that. That report is with the agencies for comment at the moment. It has come a long way. One of the general comments I would make is that each individual agency has been working well. One of the features has been the development of good policies; the need to embed those policies at frontline level has often not been as successful in the longer term as it might have been. One of the features across the criminal justice system when we are looking at national initiatives is that because there has been such an emphasis on improving criminal justice, initiatives, when they are new, tend to be successful. As managers turn their attention to other things, then the eye goes off the ball, if I might put it that way. Victims and witnesses are a good example of that because in the 2005 overall performance assessments we gave some quite positive findings to the CPS. We had to report in 2007 that there was actually a marked decline and I know that has triggered activity but still there is a long way to go to get to the level I think the CPS would aspire to.

  Q262  Julie Morgan: Do you get some actual feedback from witnesses and victims in your inspection process?

  Stephen Wooler: Very much so. May I say that Sally Hobbs actually led that and certainly a lot of direct evidence was taken?

  Sally Hobbs: Yes, we would do that as part of our area inspections when we were looking at individual areas. When our inspectors go to court they would speak to the victims and witnesses if they were able to with the help of the Witness Service after they had given their evidence. Certainly in the thematic review we have just done with the other inspectorates we did speak to a number of victims and witnesses after they had given their evidence and were able to hear from them what their experience was because we were very much concerned, not so much about the processes that back them up but also we wanted to know what had happened to people, how it had actually turned out for them. We were able to observe what was happening in court, look at the relevant case papers and files and also talk to the relevant victims and witnesses as well. The report is only out for consultation at the moment, nevertheless in that there are quite a few case studies of where things have worked well and where things have not worked so well.

  Stephen Wooler: May I add that, in terms of making the treatment of victims and witnesses most effective, one of the issues we have been addressing in the report—I do not want to go into details—is the role of the local criminal justice board. There is a large number of initiatives coming out of different agencies at national level and one of the keys is making sure that those are implemented effectively at local level and that there is clarity as to the responsibilities and who is doing what between the different agencies. Sometimes from the point of view of the victim or the witness there can be a confusing number of agencies who are involved, whether it is the Witness Service, Victim Support, the CPS, the police and the specialist units and so forth.

  Q263  Julie Morgan: Victim Support did actually raise with us concern that particularly vulnerable victims were not being identified quickly enough by the CPS. Do you have any comment on that?

  Sally Hobbs: The need to identify vulnerable or intimidated victims and witnesses stems right from the beginning of the process, so the police have a role to play in that and then the CPS have a role to play in it as well. It is fair to say that there are shortcomings in both those agencies in terms of identifying vulnerable and intimidated victims and witnesses at the various stages of contact. Then of course that needs to be picked up later by the witness care units and then the result of that can be that there is some late identification, late applications for special measures, which even though they are late will often be granted. Of course the victims or witnesses are perhaps not sure what is going to happen to them in court so it adds to their anxiety and stress and it can even delay the start of court business. There are issues to be addressed around that identification by both the police and the CPS.

  Q264  Julie Morgan: What can you do to make sure that they do identify vulnerable people?

  Sally Hobbs: There are certainly some issues in terms of police training and experience of the officers involved. They are perhaps not sufficiently aware of what special measures really meant for vulnerable and intimidated victims and witnesses, how they worked in practice. For the prosecution, it is about being more alert at the charging stage. This was something which came out of the joint inspection of statutory charging that there is a need for greater alertness at that stage about the needs of victims and witnesses. The alertness is there in terms of the evidential issues but it is actually what is needed for those people as well that is missing. Some things will probably need to be reinforced as a result of what we found on this joint inspection.

  Q265  Chairman: One issue which causes controversy in certain quarters is the increased use of in-house advocacy. Is your system going to assist some assessment of the quality and value of this initiative?

  Stephen Wooler: We are just concluding our field work at the moment. We are carrying out a number of meetings and interviews with key headquarters personnel and we will be looking in that at all aspects of the issue from the value for money issues, which the Chairman of the Criminal Bar Association was making comments on when he gave evidence a couple of weeks ago. We are looking at the qualitative things and we have brought together an expanded team for that, using a number of associate inspectors, drawing on expertise from some retired judges and from CPS trainers so that we have a very full range of expertise to assess the quality of the advocacy and in fact we have been looking not just at advocacy but case presentation as well. At the end of the day, the quality of the advocacy is actually dependent on the preparation which goes into cases. Even the best advocate cannot do justice to a poorly prepared case. We have been looking at all those issues and how Crown advocacy is managed to ensure that you get the continuity of handling which is necessary, certainly in the more serious and contested cases.

  Q266  Chairman: To go back to an earlier stage on a different point, there has been quite a bit of discussion around the new charging system and particularly the CPS Direct service which the police rather like because they get a very quick response and of course that is what they use out of hours as it were. We got some evidence which suggested that the police found it a very convenient and accessible service. Have you made any assessment or comparison between the two ways of providing that service?

  Stephen Wooler: We did indeed. We did two parallel reviews: one was the joint review of the daytime statutory charging scheme; the second was the first inspection of CPS Direct. We concluded that by saying there were certain features of CPS Direct which could be taken and applied to the daytime situation in order to produce that sort of flexibility. Whilst the charging arrangements, in my view, are very sound and actually put the decision making in the right place and ensure early preparation of cases and case building, they have, from the operational point of view, some significant disadvantages in making sure that there are quick decisions. The appointment system does introduce delay prior to charge and it can be very frustrating for operational officers if they cannot get the advice they need at the time they need it. One of the consequences of that can be larger numbers of people waiting on police bail and bail management problems for police when in fact the case is built; the prospective defendant is released from a police station because an appointment has to be made to see a duty prosecutor. The CPS are working with ACPO. There are pilot schemes, which no doubt the DPP will talk to you about, operating in London and South Yorkshire to ensure that there is a telephone service which will supply greater flexibility there and greater responsiveness.

  Q267  Mr Heath: I am going to ask a question to which I know the answer, because you mentioned it in your annual report last year, but for the record. Diversion from prosecution. Your views on it and how might the oversight be strengthened?

  Stephen Wooler: This ties into the discussion you were having earlier with the two previous witnesses that prosecution is only one means of enforcement. The criminal justice system benefits substantially from taking straightforward cases out of the criminal justice system if there can be a fair and just penalty or treatment provided in another way. The difficulty is twofold. The first is the range of authorities now involved with law enforcement. I suppose they come into the three categories: you have those which you have taken evidence from, the Revenue and Customs Prosecution Office, the CPS, those superintended by the Attorney General; you have what I would call the other government prosecutors, Health and Safety Executive, DWP; and you have a whole raft of other smaller enforcement bodies, local authorities, public health, planning and those types of issues, the Environment Agency and so forth, all of whom have a raft of different disposals. The most controversial are the growing fixed penalties. There is perhaps an oddity in that the prosecuting authorities who are subject to inspection at the moment are the ones which actually are already superintended and accountable to Parliament through the law officers whereas the other prosecutors are not accountable centrally; some, depending on their relationship, are accountable more locally but that is an anomaly[1]. There is a use for alternative disposals provided that arrangements are in place that ensure that each of the different authorities—and this would apply to prosecution authorities as well—is acting in a broadly consistent manner. The problem is that where you are dealing with public health, it is very different from an MTIC fraud. So you apply the public interest test but the types of factors which come into play can be very different. It is like apples and pears but that judgment has to be made as to whether in the final analysis it is in the public interest to prosecute.

  Q268 Mr Heath: Can I narrow that down to what most people think of as a fixed penalty, the misdemeanour where it is diverted from the court by application of a fixed penalty notice and it is paid. It seems to me that there are two potential problems there: one is the potential lack of continuity in that it does not go before a court, there is no view of the sequence of events for that individual and therefore an appropriate disposal. The second is the risk that the sort of thresholds that the CPS would use are not actually being applied so the evidential test may not be passed and the public interest test may not be passed and you may have a disproportionate penalty in comparison with what would actually happen before a court. How do we make sure that is not happening?

  Stephen Wooler: Just as on prosecutions you would want to ensure there is consistency, and that is often not in the hands of the prosecutors but in the hands of the police and the hands of local authorities and so forth, there does need to be a form of scrutiny which actually looks at the way those powers are being used.

  Q269  Mr Heath: Should that be you?

  Stephen Wooler: It would be an extension of our role. It could be done quite naturally to see the way the power to impose penalties is being used and to make sure it is not being used when the offence is not made out. There is a risk, for example, of police officers using fixed penalties. That might be more a matter for HMIC but perhaps we would have expertise to bring to bear there as to whether, when they interpret a public order situation, they are justified in issuing a fixed penalty which quite often will not be charged. The second point I would make is that it is very important that when people are being offered fixed penalties or cautions or something of that nature, they appreciate the full implications of accepting that. Cautions do remain on records for some time, they may be cited again and they can have other implications in terms of employment, having to be disclosed or travelling abroad to other countries and so forth where they may be relevant. There are issues of the circumstances in which they are used, people understanding the implications and also the consistency of approach. Across the different authorities I could point to parts of the country where you might attract a £60 fine or fixed penalty—the Home Office are increasing that at the moment—for shoplifting or criminal damage and yet from the local authority a large fine if you overfill your wheelie bin or in London, if you are in a bus lane, it would be even more. That type of thing may sound trivial but in terms of the confidence and the way the public perceive it, it is very important that the enforcement as a whole, whether through the structured criminal justice system or the alternative means is actually seen to be consistent and fair.

  Q270  Mr Heath: Have you ever formally requested an extension of your terms of reference or, alternatively, have you ever suggested, say, to Her Majesty's Inspectorate of Constabulary that a joint thematic inspection might be appropriate in order to cover that ground?

  Stephen Wooler: In one of our local criminal justice board inspections with HMIC we did actually spend some time looking at the way the police in that particular area had been using fixed penalties because we had picked up some vibes about that. No, the list of topics which is on the prospective agenda for inspection is vast. This is not one of them at the moment but I am sure if this Committee wanted to give it a push, we would be listening.

  Q271  Chairman: You have been inspecting various other prosecuting bodies by informal arrangement. Are you hoping to get a full house by this method and embrace the widest range of prosecuting agencies?

  Stephen Wooler: Certainly the Attorney General finds it valuable that we look at the Revenue and Customs Prosecution Office and we do that on a statutory basis. It is intended that we should look at the Serious Fraud Office on a non-statutory basis within the regime. We look at the Army Prosecuting Authority on a non-statutory basis. There is a limit to what one ought to do by way of extending one's remit without the imprimatur and the blessing of Parliament. It is valuable from our point of view as inspectors that we see how other prosecuting agencies operate, we learn from that and we can try to cross-fertilise some of the good practice. As I said earlier to Dr Whitehead, I do not think we are as good at that as we ought to be. The other agencies do benefit from being inspected by somebody who has looked at a range of other bodies as well.

  Q272  Mr Tyrie: You may have already published this, I do not know, but I wanted to make sure I understand how you put together your overall performance assessments. Are the various critical aspects and the other defining aspects each given a weight?

  Stephen Wooler: They are. We have a very complicated tool which we cribbed from the Audit Commission called the deterministic rule model. Some of the various factors are classified as critical—

  Q273  Mr Tyrie: Meaning important?

  Stephen Wooler: Yes; important. You get a score in relation to the critical factors and then you bring in the others to give the overall score. That is about as simple as I can get it but it is something which tries to weight the key factors like the case outcomes and the leadership.

  Q274  Mr Tyrie: It does weight?

  Stephen Wooler: Yes, it does weight.

  Q275  Mr Tyrie: Is there a percentage number here which we can allocate to this in order to get to the overall score?

  Stephen Wooler: It is not a percentage number. The critical aspects produce a factor for a score of their own and that will limit how far up the assessments you can go. Unless you score a certain amount in the critical factors, then you cannot get up to excellent.

  Q276  Mr Tyrie: Is this published?

  Sally Hobbs: Yes. I believe the overall performance assessments are in the back of the summary.

  Q277  Mr Tyrie: The weighting?

  Sally Hobbs: You may be using "weightings" in terms of whether we say this aspect is worth 20% of the score, whether magistrates' courts' outcomes are worth 20% or are worth more than that. It is not quite that sort of weighting. Just to explain a little, what happens is that those we call the critical aspects lead the rest of the score, lead the overall scoring. For example, to be excellent you need to have scored an overall score of excellent (or in some instances good) in the critical aspects. You have to have that in the first instance and then you may have a range of scores for the less critical aspects which will bring you to a final score. It is quite difficult to explain. It is not quite the weighting that I suspect you were referring to but you should find it at the back.

  Q278  Mr Tyrie: I have not seen that and I have not investigated it as carefully as I should have done before asking these questions. Having said that, I am struck by the fact that you already have something which strikes me as pretty opaque and I was wondering whether you might be able to consider a simpler, more transparent system which would enable the people being assessed to see readily how they had been assessed.

  Sally Hobbs: We might disagree with you that it was opaque. It is quite difficult to describe, but it is set out and the people we inspect do actually understand it. When we first developed our overall performance assessments we made absolutely certain that we were transparent in everything we did. We published frameworks, our criteria and we set out data ranges on which people would be assessed that were ranked as excellent, good, fair or poor. We held workshops with them to ensure that they did understand how they were going to be assessed.

  Q279  Mr Tyrie: Do you review the system every year?

  Sally Hobbs: We will be reviewing the system for the next round of overall performance assessments which, under our current strategy, will take place in 2010. We have used this twice: first as an initial baseline and then a second time to assess the movement, the improvement there has been.



1   Note by witness: this form of accountability may risk introducing political considerations at a local level. Back


 
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