Jon Robins investigates greater use of unqualified crown prosecution service caseworkers

When ministers unveiled their plans for a greater role for lay prosecutors in the magistrates’ court last year, the Attorney-General took great umbrage – in an exchange in the House of Lords – at the suggestion that having non-lawyers running cases smacked of ‘bargain basement’ justice. ‘My Lords, I am horrified at the prospect of “cut-price lawyers” anywhere at all,’ Lord Goldsmith protested. He went on to assure the Lords that Crown Prosecution Service (CPS) designated caseworkers were ‘not like that’ at all. ‘These are people who are trained – sufficiently, adequately and fully – to do their job,’ he said.


Some 18 months down the line, it transpires that this might be a claim with which many of the 300 or so designated caseworkers (or DCWs, as they are known) would take issue. According to a CPS survey of lay presenters, 43.5% of respondents stated that they had done work beyond the strict criteria laid down by the CPS – and outside their competence.


DCWs had their role extended last year when they were allowed to handle non-contentious work at magistrates’ courts. The CPS now plans to go further following consultation, and extend their role to include the representation of clients in bail applications, as well as routine case management hearings at magistrates’ courts (see [2005] Gazette, 6 October 5).

According to the CPS, the ‘fundamental principle’ is that caseworkers can ‘review and present cases which are straightforward and with no technical issues or complications of fact and law’. The stated goal is to free up the 2,500 CPS lawyers to work on complex matters.


The ‘extended remit’ is set out in the CPS’s 2004-2005 annual report. It outlines the lay caseworkers’ new role in early administrative hearings; presentations in court, but not review, in cases where a youth is charged with an adult and a guilty plea is anticipated; all cases, including youth court cases, after a guilty plea where the court has ordered a pre-sentence report; proofs in absence except where there is live evidence; ‘totting up’ driving cases where the defendant seeks to avoid disqualification on the grounds of exceptional hardship; applications for the removal of a driving disqualification; and applications for warrants of first instance.


It is hardly surprising that CPS lawyers are unhappy at the sizeable incursion of unqualified staff on to their turf. ‘In our opinion, this is all about cutting corners and trying to get justice on the cheap,’ comments Kris Venkatasami, a CPS lawyer and national convenor for the prosecutors’ union, the First Division Association. ‘At a time when there are fewer and fewer legally qualified people in court – from lay justices, to clerks in court without qualifications – the prosecution is increasingly being represented by someone unqualified.’


He questions the impact on the principle of ‘equality of arms’ between defence and prosecution. ‘The only person who seems properly represented is the defendant – for the time being at least,’ he says. ‘Surely that is only a matter of time.’


CPS policy adviser Eugene McCaffrey denies it is all about cost-cutting; rather it is about allocating work properly. The current limited remit of DCWs also causes listing problems, he says.


CPS lawyers are keen to point out that there are important principles at stake. ‘The fact that DCWs are civil servants who have no external ethical professional body able to exercise any sanction over them is very concerning,’ argues Penny Palmer, the Law Society Council member for the CPS and a prosecutor in Gwent. ‘We are being asked to be the victim’s champion and fight for justice by the Attorney-General, and the defence is going to be in a better position because they will be represented by a qualified lawyer.’ DCWs are, however, subject to a statement of ethical principles in line with that for all CPS advocates.


Mr Venkatasami says that 95% of all criminal work is dealt with by magistrates, and they are poised, under the Criminal Justice Bill, to have their sentencing powers doubled, so that they can jail offenders for up to 12 months. The FDA has questioned the legality of prosecutions advised by the DCWs acting outside of their remit, and referred the issue to the Director of Public Prosecutions. It has yet to receive a response.


He says the FDA has examples of such cases, which have collapsed as a result. ‘This has caused a waste of time and money, and will have achieved nothing for the victim of the crime,’ he adds.


The CPS was set up in 1985 to replace police prosecutions on the recommendation of a Royal Commission, after alarm over a spate of miscarriages of justice. It recommended the conduct of prosecutions ‘be the responsibility of someone who is both legally qualified, and is not identified with the investigative process’.


‘Now all of a sudden they are proposing to give that responsibility to someone who isn’t even qualified,’ stresses Mr Venkatasami. He highlights a five-day residential training course for lay presenters (supplemented by a five-day advocacy course). ‘It is hardly sufficient to deal with cases where the liberty of a suspect is in question,’ he claims. Mr Venkatasami argues that DCWs’ role in the youth courts appears to breach an undertaking given by the government to the House of Lords that such court work would continue to be prosecuted by suitably trained and experienced prosecutors, under the Prosecution of Offenders Act 1985. Mr McCaffrey rejects this, saying the DCWs’ role is focused on advocacy and not making or reviewing decisions.


The FDA reckons that a DCW would need to question a defendant in cases where the accused is arguing that a driving disqualification would cause exceptional hardship. Mr Venkatasami says the ‘entire corpus of road traffic law’ – which accounts for the majority of the casework in the magistrates’ court – is dealt with on the second day of the DCW training course. ‘Lay presenters are informed of the law on offences against the person in a half-hour lecture on the third day of the course,’ he says. ‘Sexual offences are covered in fifteen minutes.’


Apparently, DCWs are less than happy about being used simply to cut costs. A spokesman for their representative body – the Public & Commercial Services Union – told the Gazette this month that the proposals could be at risk because, although its members had helped to save £8 million a year, there was no more money for the extra responsibilities. ‘[We] fear that such short-sightedness could damage long-term plans for further deployment,’ he warned.


One DCW, a trainee barrister, points out that, far from being unskilled, many caseworkers are solicitors and barristers – or at least have some legal education – who are not able to find a position as CPS lawyer. It is a case of ‘dead men’s shoes’, she says, with lawyers regarding the DCW rank as an interim role.


At present, defence lawyers are not unduly concerned about the quality of lay prosecutors. In fact, it can be difficult to distinguish between DCWs and CPS lawyers because they ‘all seem reasonably effective’, reports James Mulholland, a barrister at 15 New Bridge Street chambers in London. He says there are effective ‘checks and balances’ in place so that caseworkers only deal with genuinely minor matters, and a lawyer is consulted before any decision is made. Mr Mulholland thinks the use of DCWs is ‘making the best of an imperfect system’ and a practical solution to a funding problem.


‘If the regime is extended to trials, then there are likely to be real problems, because there the legal issues are paramount,’ he says. ‘But all they’re doing at the moment is presenting the facts, making sure that previous convictions are before the bench, and leaving them to make a decision. If the need to make a decision does arrive, which is generally the exception, then that tends to go to the lawyers.’


Andrew Keogh, a defence lawyer at Tuckers in Manchester, finds that most DCWs are ‘very good’ and their manual is ‘impressive’. He adds: ‘This is relatively routine work that we’re talking about.’ But he is alarmed at extending DCWs’ remit to cover contested bail applications. ‘Bail applications are far from routine,’ he says. ‘It can involve an important consideration of article 5 of the European Convention on Human Rights (the right to liberty and security of person), and I doubt whether they would have the expertise to deal with that.’


Ms Palmer maintains that if CPS lawyers have to supervise caseworkers in contested bail applications, any savings claimed could be a false economy. ‘The fact is that if a CPS lawyer has to apply their mind to it, then they might as well do the [whole] job,’ she says.


Embattled defence lawyers who are already used to a pay freeze see the extension of DCWs’ roles as a sign of the times. ‘It’s devaluing the profession – in the same way that in schools, the government pays for classroom assistants instead of teachers,’ argues Ged Hale, senior partner at south Yorkshire criminal defence specialist GV Hale & Co.


‘It’s a fanciful idea that if you put in cheaper people, then you save money. And it just cheapens the whole process.’


Jon Robins is a freelance journalist