Crown Prosecution Service: Funding

Robert Buckland Excerpts

Wednesday 11th January 2017 Westminster Hall

[Karl Turner]

My hon. Friend is absolutely right. I will make that point myself. Excluding guilty pleas, conviction rates in magistrates courts and Crown courts are significantly down, despite the headline figure of an 80% conviction rate. I think the conviction rate in magistrates courts is about 50%, and in Crown courts it is about 25%, excluding guilty pleas. Since 2010, CPS staff numbers have fallen by a whopping 2,400. The CPS is suffering a brain drain and haemorrhaging experienced in-house lawyers, who leave for independent practice, or simply take the money and run.

On a serious note, I mentioned a caseworker bursting into tears in open court, clearly because of the pressure. I am told that the stress levels at the CPS are seriously high. Interestingly, a 2012 LawCare survey of the law profession revealed that more than 50% of the legal profession generally felt stressed, and that 19% were suffering from clinical depression, with more than one fifth of the profession suffering from mostly avoidable and preventable mental ill health. Stress at the CPS must be off the scale, particularly considering a recent Law Society survey in which 95% of respondents said that they were stressed at work.

Furthermore, in May 2016 the Public Accounts Committee inquiry found that

“The criminal justice system is close to breaking point.”

According to the National Audit Office report of March 2016, “Efficiency in the criminal justice system”, the number of cases outstanding in Crown courts had increased by 34% since 2013, and the waiting time for a Crown court case to be heard had increased from an average of 99 days to 134 days—an increase of about 35%.

In 2014-15, the Crown Prosecution Service spent £21.5 million preparing cases that were not heard, as the shadow Solicitor General, my hon. Friend the Member for Torfaen (Nick Thomas-Symonds), helpfully said. What has happened to those cases and the £21.5 million? If memory serves, it costs just shy of £1,000 to prepare a case for Crown court—the CPS says that being trial-ready costs it about £1,000—and £21.5 million has been spent on preparing cases that got nowhere. One must assume that the evidential test had been passed, and that the CPS reviewing lawyer had determined that there was enough evidence—that is, on balance, more evidence than not, and a more than 50% chance of a successful prosecution—and that it was in the public interest to prosecute that case. Twenty-five million quid was spent on preparing cases that went nowhere. The Solicitor General might be able to correct me and clear the matter up, but I assume that that is down to cases coming to nothing. In the magistrates court or, worse still, the Crown court, perhaps the CPS lawyer just gives in for whatever reason. I do not know; I am guessing. I have no idea.

[The Solicitor General (Robert Buckland)]

I am anxious to answer as many questions as possible. In the Crown court, cracked and ineffective trials that have not gone ahead for prosecution reasons have, as a proportion, fallen to only 13.5%. That proportion of the total is falling; it is important to bear that in mind when looking at the overall context. I hope that helps the hon. Gentleman.

[Karl Turner]

That is a fair point, but nevertheless £21.5 million is a staggering amount of money to be spent by the CPS on preparing cases for trial only for them not to come to anything. It is easy to mention such figures, but we must have some thought and regard for the victims in the cases, who will be anxious for the case to make progress and to have their opportunity to give evidence for the prosecution, and desperate to find out what happens in the trial. In my submission, the victims suffer the most from all that. [Interruption.] I will not give way, because I have been notified by the Attorney General’s office that some Government Back Benchers have indicated a wish to make a speech in the debate.

Interestingly, Her Majesty’s Crown Prosecution Service inspectorate found that charging decisions were not correct in 18.2% of cases. There is clearly a problem between the police, who are either, in cases where they are authorised to charge a case without referring it to the CPS, authorising charges that they perhaps ought not to and probably not getting advice from a CPS lawyer, or—I say this carefully—perhaps not giving the full information to the CPS reviewing lawyer.

It would not be fair if I did not say that I have the highest possible regard for CPS lawyers individually. Prior to my election to the House, I prosecuted for a fair while from chambers, and I found that CPS caseworkers and lawyers had the highest professionalism. They were committed and extremely capable individuals who cared a great deal about the job they did. I pay tribute to each and every one of those CPS lawyers, who are under incredible pressure. I also pay tribute to the Director of Public Prosecutions, Alison Saunders, whom I know personally. When I was shadow Solicitor General and shadow Attorney General, I met her on a good number of occasions, and I know that the Solicitor General meets her regularly, too. I find the DPP very professional, extremely impressive and extremely committed to the task in hand. Unfortunately, she is under considerable pressure, but she does the very best in difficult circumstances.

The decisions that I referred to should have been reviewed by a Crown prosecutor prior to the charge being authorised, but—this is a staggering figure—in 38.4% of cases, decisions were not reviewed before the case was first heard at a magistrates court. Prior to being elected to this place, I practised as a junior. I was the one who prosecuted for the CPS. Before my next day in the magistrates court, if I was lucky—sometimes it was on the morning—my clerk would give me a big, black CPS bag containing files for the next morning. I would go home and prepare 10, 12 or 15 files for trial. It would often take me through the night. All night long, I would drink large quantities—[Interruption] —of coffee, the Solicitor General will be rather relieved to know.

I would go into the courtroom the following morning to find that witnesses were not there, police officers were not available, shift patterns had changed all of a sudden, reviewing lawyers were unavailable, and the caseworkers who were available on the end of the telephone were not in a position to make any decisions. The defence, who were keen to crack the case and put it to bed, might offer me a section 5 public order offence, rather than the section 4 offence that had been charged. I would read the file and think that whoever had authorised the section 4 charge had been optimistic, to say the least, and would want to drop it in preference for a section 5 charge, which would be easy enough to get home and get a conviction for, but no lawyer would be available for me to speak to.

That was then. I have not been in a magistrates court to prosecute—I have recently been in one in a pro bono matter—since 2010. Things were bad enough then, but they are getting worse. Things are much worse now than when I was on my feet in magistrates courts before I left Wilberforce chambers in April 2010.

Some 38.4% of cases are not reviewed before they first come before the magistrates court. In reality, that means that if the prosecuting lawyer has been really lucky, they open their file and they have their witnesses ready, they have interviewed them individually, they have checked that what the police say in their statement is what they are about to give as evidence and is correct, and they are ready to crack on. But then they find that things are not quite right. The charge is probably not correct, in truth. Whoever has reviewed it probably has not done so very well, or things have been kept from the reviewing lawyer that are particularly important to their charging decision. The fact that 38% of cases are not reviewed means that when a prosecuting lawyer goes in to prepare cases for trial, nearly half of them will not even have been reviewed by a CPS lawyer. They have one arm very definitely tied behind their back.

I have kept Members long enough, but given that Government Members will say that everything is great, I want to talk about what the profession says—what individuals at the Bar say about their experience in the CPS. It would not be right for me to name people, but this is from an experienced CPS prosecutor of 30 years’ call:

“CPS hesitate to instruct QCs to prosecute even murders. Very serious, high publicity, or multiple murders will get a Silk prosecuting; otherwise not. The decision tree is on the CPS website”,

which I helpfully have in front of me. He continues:

“As a fairly senior junior barrister…I have over the last 5 years prosecuted some 12 murder cases. I have done this as single counsel. About 8 of those have been prosecuting against QC and a junior. One was of two defendants both with QC”

and their respective juniors. The CPS provided him with a CPS lawyer—a higher court advocate—in that case. He was against two silks, effectively—two Queen’s counsel —with their own juniors. I am talking about a junior not of the level I was at prior to coming into this place but of probably 20 years’ call, who has prosecuted and defended for an awfully long time and has a great deal of experience of being junior to leading counsel, and of prosecuting a murder on his own without leading counsel.

That CPS prosecutor says that, in contrast, judges

“have some influence on Defence getting a QC, and will say in open court ‘This being a murder case the Defendant should’”—

the judge of course is right—

“‘have leading counsel’ and the legal aid is then likely to be extended to cover that.”

In that scenario of a double-handed case with two defendants, why should the victim, whose loved one has allegedly been murdered, have counsel bringing the case for the prosecution against two leading counsel and two junior counsel? How does the victim feel in that scenario?

I hope it will not annoy you too much, Mr Hanson, if I talk briefly about some other cases that have been mentioned to me.

--- Later in debate ---

[The Solicitor General (Robert Buckland)]

It is a great pleasure to serve under your chairmanship, Mr Hanson. I know, on a personal level, that you have had a long interest in these matters. I hope the debate has been of particular salience to you.

I thank the hon. Member for Kingston upon Hull East (Karl Turner), my former shadow. It has been nice to be together again in that sense. I have often thought that it would have been great if he and I had done a case against each other, but I was in another part of the country from him. When he was reminiscing—not quite eulogising—about his days carrying large amounts of files to the magistrates court, it took me back to my time back in the ’90s when I did precisely the same thing.

Here is the rub: times have changed. The hon. Gentleman will be glad to know that he does not now have to carry all those files. He can have it all on an iPad or a laptop, because of the Transforming Summary Justice initiative in the magistrates court. That means there is far more efficiency now in the use of digital technology in the court. If he came with me to CPS offices, he would be amazed that in magistrates court divisions now, paper is the exception, rather than the rule.

[Karl Turner]

It is all very good when it works, but people are reporting to me that, sadly, it does not work and often goes wrong—very badly wrong. Cases are vacated as a result of the very thing the Solicitor General mentions.

[The Solicitor General]

I am grateful to the hon. Gentleman for sharing some powerful anecdotes. I do not underplay anecdote; it certainly helped to inform me in my long career at the criminal Bar. However, the overall statistics tell the full story about what is happening across the system. There is no doubt that in the magistrates court, we are seeing an increase in efficiency. For example, guilty pleas at the first hearing in the magistrates court have increased as a proportion of total cases from just over 62% back in 2010 to over 70% in the past year. That is indicative—

[Karl Turner]

Of self-represented clients—litigants in person.

[The Solicitor General]

No, it is not. It is indicative of much better preparation by the prosecution of the cases, so that when defendants appear, they face a case that has been properly put together. That is also reflected by the increase in the overall guilty plea rate, which has gone up from just under 68% to 76.3%.

The hon. Member for Kingston upon Hull East talked about inefficiency. I am pleased to tell him that average hearings per case for both guilty pleas and trials have reduced. For trials heard in the magistrates court, we are now looking at just under three days, as opposed to three and a half days or more. Compliance with judges’ orders was always an issue when it came to the Crown Prosecution Service. Hon. Members will remember “mentions”—my hon. Friend the Member for Cheltenham (Alex Chalk) will know exactly what I am talking about. I am glad to say that we have seen an increase in timely compliance with judges’ orders in the Crown court in recent years. The rate has increased to more than 80% in the last two years.

[Amanda Solloway (Derby North) (Con)]

Does my hon. and learned Friend agree that we need an ongoing discussion about how the CPS can be more efficient and effective in its work and that that should continue?

[The Solicitor General]

My hon. Friend represents a city that has a Crown court and a magistrates court. It is an important court centre in the east midlands. I know from my visits to many regions across England and Wales that those conversations continue. There is local liaison and local discussion.

To respond to the point my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) made about accountability, joint performance management, which is what we are talking about, takes place in most areas and enables local agencies, whether the courts themselves or the defence community, to challenge the CPS when performance is not acceptable. Line managers individually assess prosecutors in the CPS, so accountability is an important part of this.

[Nick Thomas-Symonds]

The Solicitor General read out some of the statistics about magistrates courts. Of course we all want to see and welcome improvement, but is he as concerned as I am that the average number of days from an offence to completion in a magistrates court has increased from 155 days in the second quarter to 2015 to 162 in the second quarter of 2016?

[The Solicitor General]

The hon. Gentleman is right to make that point, but the point made by my hon. Friend the Member for Cheltenham is the right one. Here we are debating funding for the CPS and we are eliding two issues: the overall performance of the criminal justice system with the performance of one part of it. What is happening with the caseload, particularly in the Crown court, is that complexity is increasing. There has been a marked shift—the hon. Member for Torfaen (Nick Thomas-Symonds) will agree—away from the sort of volume cases that might take a day or two to quite complex and often difficult cases involving sexual allegations. I am told by many resident judges in the Crown court centres I visit that they now form the lion’s share of court work in the lists. That complexity is definitely resulting in more challenges for the Crown court.

I was glad to note that in recent years the Ministry of Justice has increased sitting days. That has certainly helped to reduce any backlog, but with respect to the hon. Gentleman, it would be a little unfair to lay the problems of delay completely at the door of the Crown Prosecution Service. Let us focus on the debate called by the hon. Member for Kingston upon Hull East on funding.

I accept, of course, that as a result of the tough decisions we had to make in 2010, expenditure was reduced. I pay tribute to the hon. and learned Member for Holborn and St Pancras (Keir Starmer), who stewarded the CPS through that period. He did a remarkable job of delivering efficiency and providing leadership, which was then taken up by Alison Saunders, the Director of Public Prosecutions, who has rightly been praised here today. The hon. and learned Gentleman proved that the job could be done with a declining share of expenditure. When we look at the figures—my hon. Friend the Member for North East Hampshire (Mr Jayawardena) mentioned this—we see that performance and conviction rates have stayed remarkably steady through the years.

I am delighted to see on my visits to regional offices that there is smarter use of personnel within the CPS. I will give an example. North-east prosecutors will be able to work remotely—and do so—on south-east cases. That is a good emblematic example of how the CPS is making sure it uses all the resources available to it from whatever part of the country they come. That is certainly a boon to the south-east. I know it happens with prosecutors in Wales who are helping out in cases in London. That is another example of how we must not let regional boundaries become barriers to better working.

Digital case management has now made its way into the Crown court and is making a real difference. With my long years at the coalface of the criminal Bar, I was the first to be sceptical about digital and the use of IT. I have seen it before, but, believe you me, when I saw the pilots in Southwark, for example, I was delighted to see judges embracing that and telling me that the system was user friendly and starting to make a difference. Now that it has been rolled out across the country, it is starting to bear fruit.

Hon. Members talked about the challenges of the CPS and about charging decisions. It is right to say that the police have a role with regard to some charging decisions. There was a sea change, in that motoring offences were largely transferred to the police for decision making. That of course added to the reality that, with the increase in sexual offences, the CPS was now dealing with an entirely different caseload. There was not a like-for-like transition, and that complexity means extra challenges for CPS lawyers.

The hon. Member for Torfaen referred to the use of agency workers. I make no apology for that, because I think that using the independent Bar—whether to do agency work in the magistrates court or, vitally, to prosecute serious cases in the Crown court—is exactly what the Crown Prosecution Service should be doing. I am glad to say, having spoken with chief Crown prosecutors across the country, that it is increasingly using the experience and expertise of prosecutors to manage cases effectively within the system, so that we have the excellence in advocacy that we get from the independent Bar and the excellence in case management that we get from experienced CPS employees.

[Nick Thomas-Symonds]

I do not think that there would be any disagreement about the excellence of the advocacy of the independent Bar. I was simply making the point that when we see apparent cuts in the staffing budget, we have to look at the overall picture. We have to look at the temporary staff as well in adding things up to a single figure.

[The Solicitor General]

Again, I have spoken directly to many CPS staff, particularly in Wales; indeed, a lot of them used to instruct me. Some of the staff have been there for 30 years—the CPS’s retention rate is extraordinary. I think I get a bit of frankness from them, and they tell me that, in many respects, working practices have improved. The reduction in offices has helped them to work more smartly. They are now physically co-located in buildings with the police. They are working in ways that they did not dream were possible before.

[Alex Chalk]

Does my hon. and learned Friend the Solicitor General agree with me, and indeed the hon. Member for Kingston upon Hull East (Karl Turner), that if one is to use the independent Bar, it is also important to ensure that equality of arms is observed? There comes a point at which victims’ groups and victims’ families can rightly note the disparity that apparently exists between the seniority of counsel for the defence and the relatively junior status of counsel for the Crown.

[The Solicitor General]

My hon. Friend makes an important general point. Equality of arms is, of course, enshrined in article 6 of the European convention on human rights. It is something that we all understand as practitioners. It would be wrong of me to comment on individual cases, but I will say that where the Crown Prosecution Service is having to deal with complicated and complex issues relating to homicide, resource is never a bar to using the most experienced and senior counsel available, and that of course includes leading counsel.

Time is extremely short, and I want to give the hon. Member for Kingston upon Hull East a minute to respond, but let me say this. With regard to engagement, the most recent survey of employees of the CPS, of which two thirds took part, showed a welcome increase this year of 5%, right up to a figure of just over 59% telling us that morale in the CPS is good. They face significant challenges, but with increased numbers, particularly in the rape and serious sexual offences units, and an emphasis on the prosecution not just of volume cases but of serious sexual offences, conviction rates continue to stay steady and the numbers of people being brought to justice continue to rise, particularly in the important area of violence against women and girls. I could say much more, but I am mindful of the time.