Is the crown prosecution service charging scheme working? Opinion in the legal profession is divided. What is more, the project is bedevilled by mistrust between police and prosecutors. Jon Robins hears how defence lawyers are reeling from the fall-out
There has been much talk among criminal defence lawyers that the new Crown Prosecution Service (CPS) charging programme is descending into chaos amid reports of criminals let loose to roam the streets and ‘killer drivers’ being let off the hook with minor careless driving charges.
So what does Paul Whittaker, chief Crown prosecutor for Merseyside, make of this kind of reporting of the move of charging responsibilities from police to duty prosecutors? ‘They’re alarmist and they certainly aren’t accurate,’ insists Mr Whittaker, who until October 2004 was project director for the whole CPS charging project.
Last November, criminal defence lawyers said they feared that poor resources and training were leading CPS staff to downgrade charges and advise that dangerous suspects be released on bail without charge (see [2004] Gazette, 11 November, 1). Mr Whittaker rejects this, saying the only people out on bail to the police under the new regime are the same people who would have been out on bail to the court previously. ‘We’re cutting out a lot of cases that were previously being charged by the police, going to court and getting discontinued when the police produced a file showing there wasn’t sufficient evidence to prosecute,’ he adds.
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What about those ‘killer drivers’? Police Federation chairwoman Jan Berry claimed last month that drivers were often charged for a lesser offence of careless driving rather than the more serious offence of dangerous driving because the CPS was more likely to secure a successful prosecution. Mr Whittaker is similarly unimpressed. He says: ‘It is easy to make those broad assertions, but they are never backed up with any details of individual cases and statistics.’
In his previous position as chief Crown prosecutor in north Wales, Mr Whittaker personally dealt with every fatal collision case, and in Merseyside all such prosecutions are decided by the head of the units. The issue concerning fatal collision cases is the law, he says, and the very high standard of proof for dangerous driving convictions. ‘The tragic reality is that many people who are killed on the roads are killed by momentary carelessness and not by persistent dangerous driving,’ he adds.
The Director of Public Prosecutions, Ken Macdonald QC, described the ongoing introduction of the new charging arrangements as a ‘huge transfer of power’. It is now well under way, with 14 priority areas currently on the statutory scheme, covering 60% of the CPS’s work. That 24-hour statutory scheme is phasing out the voluntary nine-to-five pilot introduced last year, otherwise known as the ‘shadow’ scheme.
The big idea is that the hopeless cases are weeded out early and there is now a legal requirement under the statutory scheme for the police to consult the CPS for a decision. There is also an out-of-hours telephone service called CPS Direct staffed by duty prosecutors working from home during the evenings and at weekends. More than 85,000 calls have been received by CPS Direct to date and some 45,000 advices have been given over the telephone.
The redesigning of the charging process was never going to be pain- free. ‘The police’s complaint prior to this was that they were charging cases on which, when they went to court, the CPS was either reducing the charge or dropping it,’ explains Tim Brown, a senior solicitor at national criminal law firm Tuckers and former police station supervisor for the firm, says: ‘They argued that the CPS didn’t want to pursue anything unless there was a cast-iron guarantee.’
As he sees it, the old conflict was the clash between the CPS and its obligations under the code for Crown prosecutors and the police’s desire to prosecute as quickly as possible. ‘The venue for that fight has changed, and it’s now in the police station,’ he explains.
Of course, defence lawyers are hardly disinterested parties in the outcome of the changing relationship between the CPS and police, and they also have a clear financial interest in its outcome. Leading criminal defence solicitor Steven Jonas, president of Birmingham Law Society, said in November that he had seen a marked reduction in ‘middle-tier’ offences such as burglaries and assaults, suggesting that the police are so disenchanted with the charging scheme that they are not even bothering to arrest people. He predicted that if the charging levels were not brought up, then smaller law firms were ‘going to suffer serious financial troubles’.
Mr Macdonald replied that the initiative was going well and that the claims by defence lawyers were based on anecdotal, rather than factual, evidence. In fact, Tuckers, one of the largest criminal defence practices in the country, says the reforms have not had a huge impact on its finances, and reports an increase in charges since December.
According to the CPS, the early signs, based on the operation of the shadow scheme at five separate locations over the first six months, were actually ‘extremely encouraging’. Convictions increased and doubled in some areas and the proportion of discontinued cases went down by as much as 90%. The proportion of defendants entering a plea at first hearing increased by up to 40%. The proportion of cracked trials (where the defendant pleads guilty on the day when the system is effecting a full trial) went down by around 27%.
Malcolm Fowler, former chairman of the Law Society’s criminal law committee and a partner at Birmingham firm Jonas Roy Bloom, says the Society has long been supportive of the reforms first recommended by Sir Iain Glidewell back in 1998, despite practitioner concerns.
‘Many in the profession took the view that we shouldn’t touch them with a bargepole because the independence of the CPS and its separation from the police were absolutely crucial,’ he says. ‘But we took the view that getting the charge right rather than over-charging, or charging where there shouldn’t be a charge at all, was a pearl beyond price.’
But he says there have to be safeguards, adequate resources and good working relationships between the police and CPS. His experience is that the CPS is currently scoring ‘about two out of ten’ on all fronts.
So what is going wrong? Mr Fowler hoped that the police would treat their friendly Crown prosecutor as an asset, ‘rather than feeling apprehensive or resentful’. However, he reckons that has not proved to be the case. Mr Brown also reports that new arrangements have left custody sergeants ‘emasculated’ and taking ‘umbrage’ at the prosecutors encroaching on to their territory.
But his main concern is the lack of input that defence lawyers have in the new process. ‘The police officer makes his representation to the CPS prosecutor, to whom we have no access and no opportunity to make any representation,’ he says. He recounts that with the prosecutor stuck in ‘the bowels of the police station’, duty solicitors are faced with having to wait for a couple of hours for a decision, with the prospect of no money for their troubles, or going home.
‘Without wishing to sound too sceptical, I’ve seen what police officers say to a custody sergeant when I’m standing there and I’ve no faith in what they are saying when I am not around,’ he says.
Kris Venkatasami, convenor of the CPS section at the First Division Association – the union for senior civil servants – reports that many CPS lawyers are starting to feel the strain. ‘All the government is doing is using the same resources around and around,’ he says. ‘There are a lot of people who are extremely tired.’
He says prosecutors might spend three days in court, the rest of the week in the police station and then two weeks might pass before they return to their offices. He jokingly refers to last year as ‘a summer of discontent’; however, he hopes there will be an improvement in morale. The CPS has recruited 406 prosecutors since January 2004 to prepare for the extra workload of the charging pilot.
Mr Venkatasami is also concerned that his union members needs more support from the CPS. He reports one nasty incident of an Asian prosecutor being racially abused. ‘It can take a lot of guts for the new lawyers to stand up to [the police],’ he says.
According to Penny Palmer, the Law Society Council member for the CPS and a prosecutor in Gwent, the charging programme has revealed a lack of experience at ‘sergeant and the middle-management level’.
She explains: ‘One of the things it really exposes is that there is a need for quality control and a lot of custody sergeants are either overwhelmed or don’t have the experience to deal with the problems they have coming before them.’
Ms Palmer says many sergeants are very young and they ‘aren’t as au fait as they should be with internal police procedures. So it must be a comfort blanket going to an old prosecutor’. Mr Whittaker says police access to prosecutors amounts to ‘one-to-one mentoring for each individual case. That will have the effect of informing officers about how the process actually works and what is required to get the case actually working’.
‘It would be tragic if this did fall apart because there are enormous savings to make here,’ says Ms Palmer. ‘This can work, and work brilliantly, but only if they put the money in.’
Jon Robins is a freelance journalist
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