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


Examination of Witnesses (Question Numbers 300-319)

KEIR STARMER QC AND PETER LEWIS

24 FEBRUARY 2009

  Q300  Mr Tyrie: Are you content with that arrangement?

  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 work.

  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.[1]

  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 of—for 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.[2]

  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 justice system?

  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 minutes.

  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 system?

  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 of it.

  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 arbiter—and 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.



1   Ev 81 Back

2   Ev 82 Back


 
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