Examination of Witnesses (Question Numbers
QC AND PETER
24 FEBRUARY 2009
Q300 Mr Tyrie: Are you content with
Peter Lewis: Broadly speaking,
the arrangements work in the sense that they are bringing offenders
before court and making sure they are competently prosecuted.
There is a piece of work that is going on under the Attorney's
leadership at the moment to look across at all the government
prosecutors at least and make some recommendations to see if there
are any efficiencies there, but that is a very early stage of
Q301 Mr Tyrie: Our staff asked your
staff for a list of all the agencies and your staff did not have
one, so we also asked the Attorney General's office and they did
not have a list either. Maybe there is one in your brief, but
it would be helpful if you could furnish us with one.
Peter Lewis: I will.
Q302 Mr Tyrie: Do you think there are
some advantages to bringing everything under the uniting organisations
with prosecuting powers under one prosecutor?
Peter Lewis: These are the issues
we are looking at at the moment. We have, I suppose, a broad view
that there ought to be standards that you would expect from any
public prosecutor and I think the first step in the review we
are undertaking is to describe what those standards are and then
look at each one of us and match us against that.
Q303 Mr Tyrie: Do you think there
are likely to be advantages in allowing best practice to develop
in different ways so that there is always a variation in quality
but you then get an opportunity to drive quality towards the best,
as different prosecuting authorities illustrate it?
Peter Lewis: I think one of the
things we would wish to come out of this review, whatever the
answers are, is that there is a common approach to standards.
I think one of the things the public ought to expect is that whoever
prosecutes them in the public domain there are similar standards
and that those are the best standards for litigating cases. So
whatever comes out of this review, we hope that will.
Q304 Mr Tyrie: Do you see the Code
as part of that exercise?
Peter Lewis: Yes. There are some
of the agencies who sign up to the Code on a statutory basis like
the RCPO. The SFO follow it, but most of the other prosecutors
do accept that those are the guiding principles which ought to
guide all public prosecutors and that includes the local authority
prosecutors too, so it does represent a broad series of well-tested
standards which ought to apply everywhere.
Q305 Mr Tyrie: Do you think you will
be able to pick up the waste, wasted resources, wasted energy
from an exercise such as the one you are undertaking?
Peter Lewis: Yes. We think that
certainly when we talk with the Attorney's people about what are
the standards you should expect from the Public Prosecutor one
of those standards is that they should be efficient, so that is
something we are going to take a particularly hard look at, particularly
at this moment, of course, when all the individual prosecutors
will be under such pressure with regard to their budget.
Q306 Mr Tyrie: You are going to try
and bring that down to a number so that we can see clearly variations
in performance, are you?
Peter Lewis: I am not sure we
will be able to bring it down to an actual number certainly in
the sense offor the major prosecutors I think we can look
at cost per case. It is one of the things we certainly look at.
Whether that information exists in all those other prosecutors
I frankly do not know until we undertake the exercise.
Q307 Mr Tyrie: Could I ask you to
look into that?
Peter Lewis: Yes.
Mr Tyrie: Thank you.
Q308 Chairman: Are you aware of any
feeling that the system in Scotland, where there is a prosecutions
monopoly, leads to any loss of specialist skill, ability to handle
different kinds of prosecution; and if not, are the arguments
against a prosecution monopoly simply that we have never done
it that way?
Keir Starmer: I am not aware that
there is any loss in Scotland in terms of specialism and it is
right to say that we have specialisms within the CPS. We obviously
have our counter-terrorism division, we have special crime and
serious organised crime divisions, so you can have even on the
Scottish model a number of specialisms sitting under one prosecutor
or on our model a number of specialisms within the various prosecuting
services, but I am not aware of any evidence that the Scottish
approach is detrimental to the approach here or any worse than
the approach here.
Q309 Dr Palmer: Mr Lewis, when do
you feel the role of the prosecutor begins and ends in the criminal
Peter Lewis: We have increasingly,
as the Director has mentioned, extended our role. Once upon a
time it was fairly easy to answer that question in that it started
after the police had charged the case, but increasingly now as
we work with the police under what we call a prosecution team
ethos we are starting to get involved earlier and earlier. So
in our most serious cases around counter-terrorism and serious
and organised crime we are involved with the investigator sometimes
before there is even a suspect, when they are thinking about conducting
an operation and they are seeking our advice for what sort of
evidence you would need, what you would need to follow to get
the assets. So the point where we begin in the system is getting
earlier and earlier, certainly on the most serious cases.
Q310 Dr Palmer: So do you actually
see a logical conclusion of that something like they have got
in Scotland with the Procurator Fiscal? The CPS actually directs
the police to take particular action.
Peter Lewis: Obviously we have
looked closely at the system in Scotland. What we have found so
far is that the police really welcome the sort of advice we give
them. We are not finding on these serious cases that we have to
force our way in, far from it; they actually want our involvement
and take our advice. So at the moment in the sense of do we need
that power to get the necessary influence, the answer is, no.
Obviously if it proved to be the case, then the position would
need to be considered, but so far the police welcome us in on
these big cases.
Q311 Dr Palmer: One of the issues
that has come up in evidence is that there is the difficulty of
different, some would say conflicting, targets for policing and
for prosecutions. I see you are familiar with the issue. If there
was one target for the whole of the criminal justice system, for
instance the number of offences successfully brought to conviction,
would that be better or would it lead to finger pointing between
the different arms of the service?
Peter Lewis: The reason I was
nodding is that you are quite right to say that where there have
been conflicting targets they have proved really unhelpful, particularly
the police at one stage had a target, what they call their sanction
detection target, which was met when somebody was charged or cautioned,
whereas our targets tend to be about successful outcomes. Those
conflicting targets did not help our relationship and we have
committed with the police, both of us, to actually go for the
sort of target you have talked about because we believe that is
the best and where we have seen other targets, where we have ended
up with the same target, such as on proceeds of crime, that has
really helped joint working, there is no question about it. So
the answer is, yes.
Dr Palmer: Thank you.
Chairman: I had better just explain shortly
that we think there will be a vote which will force us to suspend
the sitting for 15 minutes, but we will be back.
Q312 Mr Heath: I do not know whether
to speak quickly or slowly to accommodate that! Thinking in terms
of the relationship between prosecutors and police, there is also
a change in the relationship at the other end, as it were, between
the prosecutors and the courts and the process of that. I have
been looking at the prosecutor's role in sentencing the draft
Code for the Crown Prosecution Service. It is clear that there
is a change in that relationship. Is there a danger that the prosecutors
are being drawn into a form of ancillary sentencing?
Keir Starmer: I do not think so.
At the moment the role is to advise the court on sentence and
to try to ensure through advice that the appropriate sentence
is passed, but it is advising the court for the court to sentence,
whereas in the past the prosecution really would not have played
much of a part in the sentencing stage, but I do not think at
this point it goes beyond that.
Q313 Mr Heath: Even, to posit an
example, where the prosecutor would recommend a conditional caution?
Do you keep records of how often that applies, and if so is there
a risk then that the prosecutor is actually to an extent usurping
the power of the court to decide what the proper disposal is?
Keir Starmer: The conditional
caution as an alternative to going to court?
Q314 Mr Heath: Yes.
Keir Starmer: No, I do not think
there is. Between charge and court there is a number of options
for dealing with criminal conduct and the approach we take is
that criminal conduct has to be dealt with effectively in a timely
way and appropriately, and there is a number of cases which can
more appropriately be dealt with by conditional cautioning. We
do, obviously, keep records of those conditional cautions and
we have looked at them in the round amongst all the other methods
for dealing with criminal conduct other than proceeding to a court.
They occupy a particular space. There are obviously Fixed Penalty
Notices, there are ordinary cautions. They occupy the same space
but I do not see them as usurping the function of the court.
Mr Heath: I am going to come back on
Fixed Penalties in a moment.
Chairman: Sitting is suspended for 15
The Committee suspended from 4.45 pm to 4.59
pm for a division in the House.
Chairman: We were going to the question
Mr Heath was formulating.
Q315 Mr Heath: I was, Chairman. We
have just been discussing the effect of a recommendation for a
caution. Mr Starmer, you mentioned Fixed Penalty Notices and of
course there is a whole other range, including primarily Fixed
Penalty Notices, which prevent a case from ever really reaching
the CPS in the first place. Does that cause you any concern, that
those various forms of disposal are increasing in their use and
do you have an overall picture of the extent to which that practice
is developing and the consequences for the whole of the prosecution
Keir Starmer: Can I take that
in stages? If you take together Fixed Penalty Notices for traffic,
for disorder, cannabis warnings, cautions and conditional cautions,
which is a sort of broad range of powers here, you are talking
about a huge number of cases. You are talking about something
like 3.7 million cases. Therefore, I think it is wrong to assume
these are cases which would otherwise have gone to court because
there are over a million cases going to court and the system could
not cope if all of those cases were being put into the system.
That is why you have these measures. You have them in most countries
that operate similar systems. Insofar as most of them are fixed
penalties for identifiable conduct without much variance, then
again that is common across similar systems and it does not cause
us much concern, and most of the Fixed Penalty Notices have been
there for a very long time and been operating for a very long
time. Conditional Cautions is obviously the particular power which
the CPS exercises. It has oversight of some cautioning and there
effectively it is a decision to suspend the prosecution pending
the fulfilment of particular conditions. They are coming to us,
so in relation to that category of cases I do not have any concerns
because we are seeing them and the prosecution is only suspended
on satisfactory fulfilment of the conditions. Subject to that
being transparent and having safeguards, I do not see a constitutional
problem or a practical problem in the operation of that sort of
system. That is where my answer to your previous question lies,
which is that I do not think it is right to talk about this as
diversion. There is a number of powers to deal with criminal behaviour
swiftly and effectively and these are among them, and those that
need to go to court should go to court and those that can be properly
dealt with elsewhere should be dealt with elsewhere, and the system
could not cope if we did not have them.
Q316 Mr Heath: Yes. I am tempted
to explore the argument, for instance, in a shoplifting case as
to whether you then have a disposal which understands the circumstances,
understands the propensity and can give a proper response to the
criminal behaviour, whatever it may be, but that is perhaps an
argument for another day. You are content that you, as Director
of Public Prosecutions, have a handle on what is happening across
the country and the degree of consistency that is being applied?
Keir Starmer: We have a handle
on it. We have a much better handle, obviously, on that part for
which we are responsible, but I can say that we understand and
recognise that there must be transparency and there must be safeguards,
and certainly in respect of the powers we exercise we will be
making it as transparent and putting in as many safeguards as
it is possible to do. We recognise that must be part and parcel
Q317 Mr Heath: Just one more question,
if I may, on the issue of consistency. One of the principal criticisms,
I guess, of the CPS is that it is either overcharging or undercharging.
Both may apply. I wonder to what extent that is, first of all,
a concern that you share, secondly the extent to which that reflects
an informal plea bargaining system which may or may not be applied,
and thirdly whether you consider that actually moving to a formal
plea bargaining system is something that would be helpful and
something you would support.
Keir Starmer: Taking those three
in turn, over and undercharging, I have read the evidence which
has previously been given to you and I realise that different
witnesses say, on the one hand, we are overcharging and, on the
other hand, we are undercharging. We do operate the Code that
you know about for Crown Prosecutors and paragraph 7 deals with
charging. There is a standard for charging and there is an understood
test. That should be applied. It is really important to remember
that the CPS is an inspected body. You have heard from the Chief
Inspector. We welcome that inspection. It is rigorous. It involved
the inspectors looking at particular cases and taking a considered
view on whether we have charged appropriately, and recent inspections
have suggested that the judgement calls we are making on charging
are right. I think Tim Godwin gave evidence to you and he said
that where he had had the opportunity to look at our charging
decisions he thought we were getting the judgements about right.
So we are inspected and we do have a Code. What is said about
over and undercharging is said about over and undercharging and
has always been said, but there is no evidence of that that I
am aware of and obviously there is judicial review of certain
decisions not to charge which would give us further evidence if
it was there. So far as the second part of your question is concerned
on, as it were, plea bargaining, there has always been discussion
between prosecutors and those defending about charging, or more
likely what pleas are likely to be advanced for certain charges.
It is normally, "Would you accept a plea to charge X and
Y at the expense of Z?" or, "Would you accept a plea
to charge A on the following factual basis?" Those discussions
have gone on. It is useful that they go on because if there is
agreement it can be put before the court, particularly on the
factual basis, and they will always go on in an adversarial system.
Should it be formalised? Well, in principle I cannot see that
there is any problem with a more formal approach if that is going
on informally in any event, subject to some safeguards. One is,
it has got to be transparent, and secondly it has got to be put
before a court, and thirdly the court has to be the final arbiterand
I add a fourth, there must not be overcharging, in other words
the Code test for the appropriate charge must lie at the heart
of any system and there must never be overcharging with a view
to influencing any negotiation of charges at some later stage.
Those would be the conditions I would attach.
Mr Heath: I am grateful. Thank you.
Q318 Chairman: There was mention
earlier of Conditional Cautions. If the conditions of the caution
are not complied with, what is the CPS involvement then?
Keir Starmer: If the conditions
of the caution are complied with, the suspension of the decision,
as it were, to prosecute becomes permanent and there is no prosecution.
Q319 Chairman: But if they are not?
Keir Starmer: If they are not,
then there can be a prosecution for the behaviour in question.
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