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

Examination of Witness (Question Numbers 360-379)


10 MARCH 2009

  Q360  Mr Tyrie: I just wonder if you would comment on what Lord Faulkner said about this when he gave evidence to the joint committee, to which you referred a moment ago. He said, "If you are the Attorney General who is part of a group of politicians making decisions about, `Should we stop a prosecution which the Prime Minister is very keen to stop?', and there is no secret about that, I cannot envisage that the public out there do not think that the fact you are part of that group has an influence on your decision."

  Baroness Scotland of Asthal: I think there has to be a clear distinction between perception and fact. The fact is that each Attorney General, of whatever political complexion, is appointed on the basis that they do have the skills and acuity to make decisions independently on issues of law, and so when it comes to prosecution that function is entirely independent from government, and I know of no attorney, past or present, who has any difficulty or has had any real difficulty saying to their political friends that our job is very clear and separate from what they may wish.

  Q361  Mr Tyrie: Some have described that as an attorney's trade union: that they will speak so uniformly on the subject. Even if it is accepted that in fact that is the way matters have been conducted and that we have a system with sufficient integrity that in future it will, we are still left with the perception problem. The public do not believe it, do they? The public think that attorneys are influenced by politics.

  Baroness Scotland of Asthal: I am afraid I do not necessarily agree with you, because there have been innumerable occasions, and I can speak for the 18 months or so that I have been Attorney, where the public seemed to be forever asking for the Attorney to look at something when they are worried about it. I am quite warmed sometimes when I look at the press and I understand that I have been doing all sorts of things where the public are saying, "And the Attorney should look at this and the Attorney should look at that." So I do not think it necessarily is that the public have this perception, I believe that some have this perception, and it is really important for us to help to explain and inform people about what the reality is. In fact, that is one of the big things that I got out of the review; that there is so little understanding of what an attorney general does, or a law officer does, at all, and that is something that I have tried very hard in the last few months to address, because I think educating people about the reality is really important so that the perception actually matches the reality as opposed to the other way round.

  Q362  Mr Heath: We must move on to the Crown Prosecution Service, but one particular area where people have said the Attorney General must look at it, and particularly the judges have said this, is the Binyam Mohammed case.

  Baroness Scotland of Asthal: Yes.

  Q363  Mr Heath: And that does seem to me to be out of kilter with what you have just been describing, because there you are taking a view as to whether an investigation by the police should be instigated.

  Baroness Scotland of Asthal: No.

  Q364  Mr Heath: Is that not a very unusual position to find yourself in?

  Baroness Scotland of Asthal: No, that is not what I am doing. I think we need to be very clear about what the court did. The court was clearly worried about whether or not they should disclose information that had been given to them, and it is quite clear from the judgment that they were not comfortable. On balance, they thought it was right and proper to honour the position that had been clearly set out to them by the Foreign Secretary in terms of the way forward, and their pragmatic response to that difficulty was to ask the Home Secretary to refer the papers to me. The reason they felt comfortable about doing that with the Attorney General is the courts absolutely understand that when an attorney general, when I come to look at those papers, that I will not look at them as a minister of the Crown, I will look at them as an independent prosecutor in relation to it and I will not investigate these issues—I have no power to investigate these issues and neither does the DPP. If a decision was made that an investigation was necessary, and that is an issue that, of course, would fall to be determined, then it would be the police who would have to investigate.

  Q365  Mr Heath: I understand that. That is where I am not really clear. I am sorry, you explained it very clearly, but I am still not clear exactly what your role is. Are you assessing the chances of a successful prosecution, or are you assessing a prima facie case, whether there is credible evidence which should be investigated? What exactly are you assessing?

  Baroness Scotland of Asthal: It is my role is to look at whether it would be necessary to refer the matter to the police. That is the position that we are at now, but I am not—

  Q366  Mr Heath: Necessary in what sense?

  Baroness Scotland of Asthal: If there was information disclosed in those papers, in the documents, which would require further investigation by the police.

  Q367  Mr Heath: When will you make up your mind?

  Baroness Scotland of Asthal: I will make up my mind when the investigations, when the perusal of the papers, the inquiries and the examination is complete.

  Q368  Mr Tyrie: Could you possibly disclose what the criteria are for a `requirement'?

  Baroness Scotland of Asthal: What do you mean by "requirement"?

  Q369  Mr Tyrie: I am using your words that "this would require investigation by the police".

  Baroness Scotland of Asthal: The matter has been referred to the Director of Public Prosecutions, you will know that he is our chief prosecutor, and, as I made clear in the letter that I wrote to Andrew Dismore, he will then be able to share with me a view in relation to those papers and I will come to a decision in relation to whether I think there is sufficient information in those papers to require examination.

  Q370  Mr Tyrie: You do understand—I am sure you do—the lack of public confidence in this area is a consequence of repeated denials of allegations of rendition, which have subsequently turned out to be true and which may lead to a level of public scepticism about the independence of your role in performing this task?

  Baroness Scotland of Asthal: I certainly do not believe, and I am sure the committee will help me if I am wrong, that there has ever been a suggestion that either I or my predecessor in title have done anything to make that suggestion valid.

  Chairman: At which point, I think we must return to some of the issues that we have to deal will this afternoon. Dr Palmer.

  Q371  Dr Palmer: We would like to start by looking at the role of the Crown Prosecution Service in relation to the police and the courts. My understanding is that originally there was an easy to understand and fairly clear distinction that the police investigate, the CPS decide whether to prosecute and the courts hear it. The CPS role appears to have expanded so that they have say both at the police stage and the court stage. Is that a plan? Is it going to carry on expanding?

  Baroness Scotland of Asthal: I think what has been very important is we have tried to improve the quality and effectiveness of prosecutions and the process overall. You will remember that, before we started work in 2003 through the National Criminal Justice Board and the Local Criminal Justice Board, there was a worry that we had a high level of ineffective trials, things were not being managed in a way that gave people a lot of confidence, particularly victims and witnesses, that these processes would be improved, and what we recognised was that it was very important to get a level of acuity, a level of judgment, at a fairly early stage so that we actually got the right charge for the right set of facts. We absolutely understood what was said to us by so many victims that they were given false promises as to what might be possible, and so getting the charge right was the best way forward, and you will know that is why we did No Witness No Justice, and it came out of that project that we understood that if you could get the charging decisions correct, then it made it much more effective and efficient and, indeed, we now have the CPS undertaking about 35% of the charging. The police still undertake about 65% of the charging. The 35% tend to be the more serious and the outcomes are much better. So if the question is: do we want to continue that efficiency and effectiveness? Yes, we do. We also know in some very serious cases, like the Rhys Jones case, that the police and the prosecutors working together from a very early stage has huge benefits in terms of successful outcomes, and that was one example of an extremely successful outcome, not just in terms of bringing people to justice, but also for the families, who had great support both from the police but from the prosecutors as well.

  Q372  Dr Palmer: If that is the case, and I do not necessarily dispute it, would it not be natural to extend it further so it is not 35% but 50% or, indeed, 100%?

  Baroness Scotland of Asthal: No, I think what one really has to look at is what will be most effective and efficient. You will know from hearing the evidence that we are looking at virtual charging, virtual hearings, and it may be that, as we develop the technological and other opportunities, more of this could be done, but I think the focus—because one has to remember that the prosecutors are a relatively small group—is likely to remain on the more serious and more important cases, and I know that there is virtually a unity of view between the CPS and the police that they have probably got the balance about right at the moment.

  Q373  Dr Palmer: At the moment the police basically decide, do they not? They can ask the CPS, but the CPS do not at present have the power to direct the police.

  Baroness Scotland of Asthal: That is right.

  Q374  Dr Palmer: Are you comfortable with that? Do you think that is the right balance?

  Baroness Scotland of Asthal: I think it is working well at the moment because we have moved into an area where both the police and the CPS see real benefits in working in partnership and assisting each other.

  Q375  Dr Palmer: As you may have seen in earlier evidence, there is the issue that they have slightly conflicting targets. The police have an interest in charging as many people as possible and the CPS have an interest in prosecuting as few people as they can be confident of convicting. Would it not be better if they had a joint target?

  Baroness Scotland of Asthal: I think, if you look at the PSA targets we now have, they are joint in terms of confidence and delivery. I do think that I should correct the impression that you may have got. The CPS have an absolute interest in correctly charging all defendants who come within their purview, and it is getting that prosecution right; and we have seen the real benefits of that because we have probably saved, as a result of police being assisted by prosecutors in charging in the way I have just described, about £95 million, and it is likely that we will save more.

  Q376  Dr Palmer: To take a specific case, it is always going to be more an art than a science. If there is a case where there is between a 40 and 60% chance of a successful prosecution, the police officer investigating would almost be falling down in his or her duty if he did not make a charge so that the CPS had the chance to study it. The CPS would be inviting an adverse effect on their record if they then pursued it, even if it was slightly under 50%.

  Baroness Scotland of Asthal: I think one of the things I have found really interesting is to see how, through the police and prosecutors working together, it is almost a cross-fertilisation of education so that they better understand the information that is likely to bring about a successful prosecution, but also, I think prosecutors are starting to better understand some of the challenges that investigators face. So I do think that what we are getting is a greater degree of acuity, judgment, sharpness about what is necessary, and what is also possible (and it is happening increasingly, of course) is that where the prosecutor believes that further or other information could be secured which would enable a successful prosecution to take place, that advice is being given to good effect. I have heard from a number of police officers. One police officer described it to me as "having our own brief now". He said, "In the past we felt we were on our own. The defence had their brief and we did not have ours", so having somebody there available to give them cogent advice but also, actually, to tell them when something just will not fly and why.

  Q377  Dr Whitehead: You have mentioned the question of making sure that the correct charge is levelled, but, of course, with the CPS's power to determine charges there are suggestions that that has led to a number of occasions where lesser charges are offered in return perhaps for a guilty plea and, of course, more recently, the issue of the CPS's powers to issue conditional cautions perhaps as an alternative to a case proceeding. Are you assessing the effect that those processes might have on whether really you can say that the CPS are across the board ensuring that correct charges come about? Conditional cautions have been described in evidence to us, for example, as a triumph of pragmatism over principle.

  Baroness Scotland of Asthal: I really do not think that it is a triumph of pragmatism over principle. I think it has been very, very important for us to get the correct level of charging and that we intervene at an appropriate level to reduce the likelihood of reoffending, and it is very important, I think, if you look at the way in which the criminal justice system now sees itself, that those targets that we have now created apply to all of us, not just to one of us; and the opportunity that we have to look at whether we are getting the balance right is not just me looking with the law officers department, it is also us looking together across the CJS, through the National Criminal Justice Board, through the Local Criminal Justice Boards because there are tensions. You have spoken about the not unnatural tension that there can be between the police and CPS about: "Are we getting it right?" So Jan Berry is working hard in terms of bureaucracy. I know you heard from Tim Godwin about the development that is taking place between police and CPS. So there is a lot of scrutiny and I think one of the things that I found really most encouraging is that this is a cross-discipline scrutiny, because at the end we want a system which is just, we want one that is balanced, one that looks after victims and witnesses, one that charges the right people, hopefully, convicts the right people and gives them a sentence which is likely to reduce their likelihood to come back. So I think there is a lot of opportunity for checks and balances, and I think that that is very important if we are going to get the high quality criminal justice system which I know we all want very much.

  Q378  Dr Whitehead: On the question of the correct charge and the public confidence, therefore, that the correct charge has been levied and public confidence, I guess, also in the role of prosecutors, as it were, as a gatekeeper to the criminal justice system, have you also made an assessment of the increasing impact and use of fixed penalty notices where in a sense those are alternatives to even levying a charge in the first place and increasingly straying outside the process of prosecution and, of course, under some circumstances, producing outcomes which perhaps can be seen as considerably worse for the person prosecuted or levied with a fixed notice than would be the case had the "correct charge" been proceeded with through the courts?

  Baroness Scotland of Asthal: Of course, that is an issue that is being looked at. I do not think that there is any cogent evidence at the moment that there is inappropriate use of fixed penalties, but I absolutely hear what you say. For instance, there are those who, say, get an £80 fixed penalty notice and if you went to court you would perhaps get a £50 fine. There is a big issue, is there not, as to which one is right and which one is wrong, but the fixed penalty notices have been used to some good effect, lots of people prefer to pay a fixed penalty notice, particularly because it enables them to dispose of the offence, which they acknowledge they have committed, quickly and easily without the administrative burden of doing it elsewhere, and I think there is cogent evidence to show that it is effective. When you add to that the reforms we are making to the process in the Magistrates' Courts—you will have heard of the CJSSS, which makes that process faster—I hope that if there is any incentive to use a fixed penalty notice rather than going to court, that would be reduced: because if it is going to be fast, effective and speedy, then which one you choose may be dependent on the level of the offence that you are looking at. So I think it is something that we should continue to look at. I know that the NCJB is continuing to look at it, but I think we also need to understand the huge improvements I think there have been as a result of charging. For instance, discontinuance is down from 36% before we started charging to now 13.2%. Systemically, that is a very significant improvement, but I do not think you can look at any of these strands separately. It is not as if we can say, if we just do this, it will work. We have got to improve charging, improve the understanding of which offences need to be fixed penalty, which need to go to court; we have got to improve the position in terms of the process we adopt in court and improve the data that we have in relation to the effectiveness of sentencing. All of that has to be done, there is no one quick fix, but, of course, what I am trying to do in terms of the prosecutors is make sure we are really honing their job, that they are effective gate keepers. We know, for instance, as a result of charging, we have significantly managed to give ourselves an assurance in terms of disproportionality; so from the recent information we have of the charges that the CPS are undertaking, we know that there does not appear to be any improper disproportionality based on race, or sex, or religion, or any other factor. So there are some assurances that we can build in to make sure that the prosecutors are doing their part and discharging their duty appropriately.

  Q379  Mrs Riordan: How can the CPS provide both a consistent national service and a locally responsive service, and what would a local CPS office actually do? Can they adapt to local communities' concerns, i.e. press for the highest charges for certain crimes that that community particularly fear? Is that appropriate or even possible?

  Baroness Scotland of Asthal: I think it is going to become increasingly possible for the following reasons. Firstly, no. We have devolved more and more responsibility down to the Local Criminal Justice Boards that the number of targets has been reduced. We are talking about confidence in the local criminal justice systems. That gives local actors a much better purchase about what do we need to do in our area to enhance public confidence and accountability. Also you will know that Keir Starmer and I are looking at the whole idea of introducing community prosecutors so that they really understand when we come to look at public interest: what is the public interest in my area? Are there factors that I really need to take into account so I can better understand how I make these judgments? I am actually really proud of the outreach work that the CPS are now doing in all sorts of areas in the country, going out talking to communities, getting involved in some of the safer school partnerships, understanding better how to respond to community need. So I think we do have to have clear standards which are applied everywhere, but how we deliver for a community will be very much shaped by the needs of that community, and that flexibility I think is really important.

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