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As the noble and learned Baroness knows, many of us feel that DCWs should not undertake trials when imprisonment may result. She is reluctant to go one step further than Amendment No. 116B and put that in the Bill. However, she has found an ingenious alternative approach by means of Section 7A(3) and (4) of the Prosecution of Offences Act 1985. She explains that this section of the Act places a statutory obligation on the Director of Public Prosecutions to issue general instructions that govern the nature of the type of hearing in which DCWs might be employed. If the director wishes at a later stage to change these instructions, the Attorney-General must be consulted and satisfied that any extension is justified. The noble and learned Baroness assures us that the initial instructions that will be given by the director will be that DCWs can be involved only in trials involving summary-only offences that are non-imprisonable.
Although I salute the skill with which the noble and learned Baroness has woven this tapestry, I am hesitant about the operation of the mechanism. I do not think that consulting the Attorney-Generalthis is no disrespect to the noble and learned Baroness or any Attorney-General who might one day stand in her shoesis a sufficient guarantee to your Lordships' House. I would like inserted into the 1985 Act an opportunity for Parliament to consider a change of the general instructions, probably by an affirmative resolution.
The debate in your Lordships' House tonight has ranged widely. With one hesitation about two of the things that the noble Lord, Lord Borrie, said, I agree with everything that noble Lords have said. It is especially important to underline a point made exceedingly well by both the noble and learned Baroness, Lady Butler-Sloss, and my noble and learned friend Lord Mayhew of Twysden. In quite a lot of these cases, the defendant will not be legally represented. We need to be sure that the designated caseworkers understand that their duty is to the court, not, or not primarily, to the prosecution. The point was especially powerfully made by the noble and learned Baroness that independent line managers must understand that. They must understand that, whatever view the CPS takes about the desirability of winning, there is a duty on the person who conducts that litigation over and above that institutional target. We need to be confident that that is not only well understood but operationally effective.
I note from the letter that negotiations are going on over the ILEX code of conduct; I wish them well. I am inclined to the view of the noble Lord, Lord Thomas of Gresford, that the ILEX qualification is the minimum necessary. I understand the noble and learned Baronesss keenness to engage in providing for DCWs the new type of experience in magistrates' courts; but the desirability of developing the careers of DCWs cannot in itself be a key reason for doing what she seeks. I can see that it would have that effect, and I know that institutionally that effect is desirable; but I do not think that it can be the motive for making the change. It is a consequence of the change if there are other good reasons for making it. I therefore thank the noble and learned Baroness very much indeed for her letter. It was beautifully typed, and I have always admired her signature. I shall consider it intimately between now and Report, and I look forward to returning to these matters on that occasion.
Baroness Scotland of Asthal: I am so grateful to all noble Lords who have spoken, but I am particularly grateful to the noble Lord, Lord Kingsland, for his complimentary comments about the typing. I have always found the content of more interest.
May I say how much I agree with and understand the basis of the concerns that have been expressed about these issues? I reassure the Committee about the way in which these matters are dealt with. Many noble and learned Lords will be aware that we have in recent times introduced a new procedure for charging, so that a legally qualified prosecutora lawyerdetermines the nature of the charges that will be laid and therefore has an intimate connection with the preparatory stages of the case. The designated caseworker will therefore not work on their own but will be part of a team. The level of participation appropriate for a designated caseworker will then be determined. I say straightaway to the noble and learned Lord, Lord Mayhew of Twysden, that he need not be concerned that a lawyers eye has not passed over the very precise issue of whether there should be a prosecution at all and, if so, on what basis. Qualified solicitors and barristers employed by and on behalf of the CPS remain available to designated caseworkers to assist them, so they are not cast adrift in that regard.
I say, too, to the noble Lord, Lord Kingsland, that of course it is not part of our role to seek to develop the career of a designated caseworker, but he and I both, I know, have a firm belief that we should seek to diversify those who come into the profession, to the benefit of the public and others. This means that introducing those who may not have thought of becoming a lawyer when they left school has proved to be very successful. We know how professions can change. The noble and learned Baroness, Lady Butler-Sloss, knows only too well how one can rise through the ranks from registrar to Lord Justice of Appeal and then to President of the Family Divisionsomething that we have all benefited from and would like to see more of. I therefore agree with my noble friend Lord Borrie that these provisions are well founded and balanced, and I hope that, on mature reflection, when the noble Lord, Lord
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I say, too, to the noble Lord, Lord Thomas of Gresford, that I understand that my noble friend Lord Hunt wrote on 8 February to the noble Lord, Lord Kingslanda letter that was copied to the noble Lord, Lord Thomas of Gresfordproviding details of the government amendments and the agreement with ILEX. He also wrote on 7 February, following up points made at Second Reading, so it is not quite fair to suggest that these matters have not been raised before. I take full responsibility for the letter. I knew that this matter would come to the Committee late, and I hoped in my common naive way that the letter might assist your Lordships better to understand the history, the nature, the content and the reasoning that the Government have put into coming to this resolution. I hope that the letter will do that in due course.
Lord Thomas of Gresford: This is the noble and learned Baronesss amendment, so she will have the last word. The letter assists us in showing how far she has got in her consideration, but there are other issues. There is a certain comfort in the fact that a lawyer will have looked at the charge, but the presentation of the case in court demands a knowledge of the laws of evidence, a knowledge of the ethics, and skills in presentation. We shall see whether those are all available. The noble and learned Baroness should also bear in mind that the clerk to the court does not have to be legally qualified, although in my youthI dare say that it was not the case in her youththe clerk to a magistrates court was almost always a qualified lawyer, which certainly is not the case today. One envisages a situation where you have an undefended defendant, an unqualified prosecutor, an unqualified clerk and magistrates of experience and wisdom, no doubt, but not necessarily legally qualified to pick up the problems that can arise in the presentation of a case, and not necessarily in a position to understand the niceties of what is happening in front of them.
Baroness Scotland of Asthal: Of course I understand what the noble Lord says about that issue, but it is important to understand, too, as I said earlier, that this is a team analysis. It will look at the nature of the case. It will look at the quality of the evidence that is to be produced, all of which will have been viewed by a Crown prosecutor of legal experience. It will give guidance in terms of the briefs that are given to caseworkers to carry out this work. One of the factors which the prosecutors will look at is whether the defendant is or is not legally represented. These are issues which may determine whether a designated case worker does the case or some other individual.
Baroness Butler-Sloss: On this point, it is not so much the preparation that would worry me as what could go wrong in court. The noble and learned Baroness and I, and others in this House who have been lawyers and have practised in different courts, including the magistrates court, know that the way a case is presented is not the way the case goes, and
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Two things worry me. First, at that moment there is not be a single lawyer in court, as the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Mayhew of Twysden, have pointed out. Secondly, if it goes wrong, will the line manager understand or will the Crown prosecution non-legally trained employee really go partly wrong because he is afraid of what will be said back in the office? Not being a lawyer, he will not have had that independence of training.
Lord Kingsland: I have a different point to make, which harks back to that made by the noble Lord, Lord Thomas. I am sorry that the noble and learned Baroness thinks that I have been rather churlish about her letter. I thought that I had gone out of my way to say how helpful it has been and how much we welcomed it. I do not wish her to be in any doubt about that.
Training is important and, of course, all this is predicated on having excellent training and skills that can be developed. The process through which designated case workers entertain this work is really quite impressive. I want us not to forget reality. It is true that there are many qualified solicitors, barristers and professors of law who one would not necessarily say were the most erudite, effective and succinct advocates. It is a skill which the whole of the profession benefits from and has to constantly hone, and I do not suggest therefore that designated caseworkers fall into a different category.
One has to bear in mind one further fact. If the Committee were to say that designated caseworkers as a group could not prosecute save in and except for those cases which are non-imprisonable and that was put in the Bill, those designated caseworkers who are currently qualified solicitors and barristers but discharge the role of a designated caseworker would, while they remain in that role, not be able to do contested work. I know that that is not what noble Lords would wish for, and indeed the Committee knows that full ILEX members are able to undertake any form of work in the magistrates court. The way we have crafted this provision would enable designated caseworkers who are barristers and solicitors, and those who are ILEX members, in due course to do all forms of work, restricting the non-imprisonable and other forms of work to those who have appropriate training and skills but are not yet members of the profession. I hope that in due course this will be something with which we can all be content.
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