Crown duals - the Crown Prosecution Service has survived some bruising times to emerge unbowed in a new nationwide structure

THIS MONTH THE CPS TAKES ON A NEW GEOGRAPHY TO MIRROR THE 42 POLICE FORCES , DAN BINDMAN ASSESSES THE CHANGEThe reorganisation of the Crown Prosecution Service (CPS) entered a critical stage this month, yet life for the service's 1,800 lawyers and the people they are prosecuting will continue largely unaffected.On 12 April 1999, the CPS will cease to be divided into 13 geographical areas and will instead mirror the 42 areas around which the police forces are organised.

New Chief Crown Prosecutors (CCPs) have now been appointed to the 42 areas, each backed up by an area business manager.

But the service's 93 branch offices will continue to operate as before.

In the short term at least, the only immediate shift the lawyers will experience will be that their existing offices will be assigned to a new, smaller area.The changes follow the government's partial adoption of the reforms to the CPS proposed in June 1998 by retired Appeal Court judge Sir Iain Glidewell and his review team.

The government has so far accepted 39 out of Glidewell's 75 recommendations, most of them relating to the CPS's internal structure.

Work on another 23 proposals relating to the wider criminal justice system is expected to be completed this summer.At the Criminal Law Solicitors Association's annual conference last November, Sir Iain indicated he would expect visible signs of change by April 1999 if his faith in the government's determination to push through his reforms were to be kept alive.The move to 42 areas is part of a government push to synchronise the organisation of criminal justice agencies: the police, the CPS, the magistrates' courts committees and the probation service.With a strong emphasis on continuity and a smooth transition, the 42 new area offices will start next month with a skeleton staff.

They will be able to draw on the administrative expertise, in matters such as personnel, training and estate management, of the 13 current area headquarters, which will be renamed 'service centres'.

In time these centres are expected to disappear, as the CCPs gradually bring administrative functions in-house.A central theme of the Glidewell report was that the 42 CCPs - in effect local directors of public prosecutions - should have 'a large degree of autonomy'.

Equally, they should be people of stature in the local community, on a par with police chief constables.

Birmingham solicitor Malcolm Fowler, chairman of the Law Society's criminal law committee, says the autonomy point was 'a very important philosophical strand of Glidewell, which seems to have been taken on board pretty completely' by the CPS.Yet to emerge is the precise balance of power between the CCPs and the Director of Public Prosecutions, David Calvert-Smith QC, and his chief executive, Mark Addison, both based at the national headquarters in London, has yet to emerge.

A framework document, so far drafted but not finalised, will set out the rights and duties of the CCPs.

Its premise will be that CPS national headquarters will decide on the 'what?' and the CCPs on the 'how?'.According to CPS communications chief, Lynn Salisbury, the ultimate aim is 'to create a national service, locally delivered, so you have the same standards of prosecution from Cornwall to Cumbria, so people who commit a crime get the same treatment in all parts of the country'.Other aspects of Glidewell, in particular the formation of criminal justice units, trial units, and special casework units, have yet to be decided upon.

The criminal justice units were intended by Glidewell, although he declined to be prescriptive, to give the CPS responsibility for the work currently d one by the various police administrative units, combined with the CPS's existing file preparation and review functions.The Attorney-General, John Morris QC, has described the criminal justice units as being among the most important of Glidewell's proposals.

A joint CPS-Association of Chief Police Officers project group has been considering the make-up of the criminal justice units and the CPS expects a decision to be taken by the middle of this year.Glidewell also made several recommendations specific to CPS lawyers.

Among other things, he said the lawyers should spend much more of their time prosecuting - the administrative burden on lawyers has been a common complaint - and that 'the CPS ought to be a showcase for the legal profession, providing attractive career opportunities for young and competent lawyers and caseworkers'.

He also pointed out that enhanced rights of audience in the Crown Court - to which the government is committed - should boost their career satisfaction.There is little doubt that the low morale suffered by CPS lawyers under the previous DPP, Barbara Mills QC, has improved markedly since the Glidewell report was published.

One CPS insider says the climate had already changed: 'I think it is very different now.

I don't think poor morale is something that has dissipated overnight by any means, but I don't think there's the dreadful tension that there was'.Steve Dent, the First Division Association's (FDA) national officer with responsibility for the CPS, who represents a majority of the service's 1,773 full-time lawyers, says his union had signed a partnership agreement with the chief executive, Mark Addison.

Under the agreement, the CPS has pledged to consult at national and local levels with the FDA on all major reviews and proposals for change.

This would happen through the CPS's existing 'Whitley' structures - negotiating bodies common to all government departments.

The two sides have also agreed to have joint training with managers on the operation of Whitley principles.

But although there was 'certainly goodwill on both sides', the deal represented 'the start of a process, not the end of a process,' Mr Dent cautions.While most CPS insiders are optimistic that Glidewell will breathe life into the service, there are fears that the recruitment of Chief Crown Prosecutors (CCPs) mainly from within the CPS could prevent new ideas from emerging.

Former senior Crown Prosecutor Neil Addison, who more than three years ago proposed many of the CPS reforms since adopted by Glidewell, raises this concern.Mr Addison also has made several proposals for the post-Glidewell era.

CCPs should become 'much more outgoing', he says, 'being able to present the local CPS position to the media without asking London for permission'.

CCPs should also be given freedom to try out new ideas, he maintains: 'For example, if a CCP decides to experiment, with, let's say, franchising law firms to prosecute, as is the case with legal aid work, will he be allowed to do that?'The legal profession should become more involved with CPS lawyers, especially the Bar with CPS barristers, Mr Addison suggests.

'If CPS lawyers are part of the profession, then that improves their professional independence as lawyers.

For its part, the CPS has got to stop being inward-looking and see itself as part of the profession.'Finally, the CPS should put emphasis on recruiting experienced lawyers rather than recruiting at the junior end of the career path, says Mr Addison: 'Getting experience from outside is a good thing.

Maybe the CPS should recruit o utside lawyers to be Crown Court advocates'.WHAT DRAWS LAWYERS TO WORK FOR THE CPS AND WHAT IS IT THAT LEADS THEM TO MAKE A CAREER OF IT? STEPHEN WARD FINDS OUTProsecutors seem to be made, not born to the job.

Although 40 of the 42 new Chief Crown Prosecutors are internal appointments, and most have been in the Crown Prosecution Service (CPS) a decade or more, few had this career in mind when they first signed up.Nicola Reasbeck, 43, who is moving from Wales to be head of Northumberland, says: 'I certainly didn't see it as a career for life when I became a prosecutor in 1981.

I thought I would probably do it for a couple of years, gain good advocacy experience, then move to something else, probably private practice'.Judith Bermingham, 44, the new top person for south Yorkshire, was working for Irwin Mitchell in Sheffield in the early '80s when she made the switch, and says: 'I loved defending.

I found it both fulfilling and enjoyable.

In those days, a solicitor would do a couple of years as a prosecutor, then go back into private practice.

That was the path I was following.

Then just at that time - and it happened quickly - the prospect of a new national service was on the cards and I thought it seemed interesting and exciting, and I stayed'.Andrew Cresswell, 45, currently an assistant Chief Crown Prosecutor for the south west region, who takes over Devon and Cornwall, did articles at Rutherfords - now Weightmans - on Merseyside, including a lot of insurance work, conveyancing, some licensing but little crime.He says: 'I had a choice of staying in private practice at another firm, but the criminal law fascinated me, as did the ability to make decisions.

In private practice you can advise, but you don't make an awful lot of case-deciding decisions.

Also as a prosecutor all human life is there, you see everybody from society, as witnesses, defendants or victims'.The new Chief Prosecutors - who take their positions in April - have mostly been on board throughout the turbulent decade and half of the CPS's existence, and before that they worked for the local prosecuting services.

But although they have seen all the permutations of bigger or smaller areas and national and local chains of command, they still maintain there are inherent advantages to the latest structure.According to Ms Bermingham, it was a definite drawback that people did not identify with the 13 regions which have just been abolished, because they were too wide and too diverse.

Her own region, which was called Humber, included Lincolnshire, Humberside and south Yorkshire, a combination of farmland and a big city conurbation split in half by a large river estuary.Boundaries which will now be identical to those of the chief constables should make the crucial relationship with the police more straightforward.

But everyone stresses there will not be an over-cosy closeness.

For example, Ms Reasdale says: 'I can't say I've ever felt my independence was at risk in any of the systems I've worked under.

Independence is a state of mind.

Relationships already vary around the country but wherever I've worked the relationship has been pretty constructive.

It is not healthy for a relationship to be entirely without tension.

There are bound to be occasions when you disagree, but there is debate, then a resolution'.The new CPS chief prosecutors are mostly a new generation in years as well as structure.

Only four of the 42 were previously chief prosecutors of the former larger areas.

Eight are in their 30s, the youngest being David Archer, 34, who moves from London to A von and Somerset.

Another 22 are in their 40s, and no-one is over 55, making them a decade or two younger on average than their predecessors.

One in eight is a woman - better than none in 13 as before.Some of the new chief prosecutors have worked in several regions of the country already - in Ms Reasdale's case, Essex, Hampshire, Yorkshire and London.

Others, like Ms Bermingham, have been based in one city all their working lives - although in her case with lengthy secondments to the CPS in London in its early days.All the prosecutors would like to use their positions to explain what the CPS does and does not do.

Ms Bermingham says: 'I want us to have a much higher profile within the area'.

She says most lay people think they will only be in contact with the CPS as victims of crime, or witnesses, but she wants people to realise that anyone can be wrongly accused of a crime, so an impartial and efficient service is important to all.Ms Reasdale agrees that better public understanding will help the CPS.

'Relatively few people come into contact with the CPS,' she says.

'Most people have a pretty good understanding of what the police do because they see them on the street all the time and see them explaining cases on television.

They understand court from watching Kavanagh QC and things like that.

We are not so visible.'For legal reasons there is a limit to how much the CPS is able to explain about cases, Ms Reasdale says.

'But I think at local level, the Chief Crown Prosecutor will have contact with local groups, will speak to various meetings, things of that kind,' she says, and adds that they will be able to speak in general terms about difficulties of evidence.All but ten of the 42 new chiefs are solicitors rather than barristers.

Once they have been in the CPS for a few years they make little of the distinction.

The Director of Public Prosecutions, David Calvert-Smith, a barrister, has expressed reservations about crown prosecutors appearing as advocates in the higher courts, but there is enthusiasm for the idea among the new solicitor chief prosecutors.

Andrew Cresswell says CPS prosecutors working in the Crown Court help the whole service to be more efficient by understanding better the needs of the court room.Many of the new appointments talk convincingly about the potentially fulfilling career the CPS can offer, compared to much of private practice.

Ms Bermingham says she has always looked back at the end of every year she has been in the service, and each year she has been able to say: 'I've developed, I've come on.

My whole career has been developing new skills'.Mr Cresswell is optimistic that in the future this could be the case for more CPS solicitors.

'There were those lawyers who thought the better they were as a lawyer the more likely they were to become a manager,' he says.

'One thing that shines bright for the future is the new focus on the law rather than management for lawyers.

You might find now you get a richer vein of more serious work as you advance, rather than moving more towards management.'And for him there is a more mundane but still important bonus in the latest reshuffle.

He keeps the same office and desk in Exeter, while the organisation changes around him.MATT BARNARD LOOKS AT HOW THE CROWN PROSECUTION SERVICE EMERGED FROM THE STEPHEN LAWRENCE INQUIRYThe Crown Prosecution Service (CPS) was perhaps the only organisation to come out of the Stephen Lawrence police inquiry or the subsequent public inquiry with much honour.There are still questions arising out of the CPS's treatment of Duwa yne Brooks, Stephen Lawrence's friend and witness to the murder.

However, as far as the decision in 1994 to discontinue the prosecution of the gang of white youths accused of the Stephen Lawrence's murder, the CPS has received the support of the Macpherson report and many criminal lawyers, as well as the court judgment in the private prosecution brought by the Lawrence family.The judge in the private prosecution case directed that it should be dropped on the same grounds that the CPS had decided that there was insufficient evidence to proceed, namely the reliability of Duwayne Brooks' identification evidence.

Neil Addison, a senior criminal barrister and Senior Crown Prosecutor, comments: 'The CPS had no responsibility for the police investigation, and it is clear the CPS made the right decisions based on the evidence it was given by the police.

I don't think racism, institutional or otherwise can be said to have played any part in the CPS's decisions.'However, the case has left much bitterness on both sides.

The Lawrences have been quoted as saying that the CPS as a body was 'tone deaf to our existence and our needs and concerns'.

On the other side Howard Youngerwood, the assistant Chief Crown Prosecutor who took early retirement in 1996, won substantial damages and an apology from the Observer after it printed an article which he believed depicted him as a racist.In an article in the Daily Telegraph of 22 March he describes how upset he was about the reaction he got from the public at the Lawrence enquiry before he was able to describe his own experiences of racism as a Jew.

He also maintains that though there will be much relief in the CPS about the conclusions of the Macpherson report, many lawyers are still concerned about some of the implications of the case.

He comments: 'At the time of the libel action a lot of lawyers were saying to me "If you can be turned into a racist, God help the rest of us".'However, although the CPS has been shown not to have been racist in its decisions, it seems clear that in terms of communication at least the CPS didn't do a good job explaining to the public why it had come to the decision it had.

As Rodney Warren, vice-chairman of the Criminal Law Solicitors Association (CLSA) points out: 'The CPS is not renown for its PR machinery.'This is one thing that Mr Youngerwood says the CPS needs to work on: 'I certainly thought when I was at the CPS that it was frankly far too afraid of getting involved in public discussion and deflecting criticism when there is controversy about a sensitive and complex decision which hits the public headlines.'Many people also think that the CPS needs to improve its communications with the families of victims so that they do not feel the need to pursue private prosecutions.

The CLSA's Mr Warren comments: 'There is no doubt that the Lawrence inquiry provided lessons for us all and it would appear on the face of it that a more sympathetic reaction earlier or greater communication might have helped.'This is something that the CPS accepts.

Alan Kirkwood, a senior member of the policy directorate at the CPS, comments: 'I think [regarding] specifically the concern that the inquiry expressed about Mr and Mrs Lawrence and the way that information was given to them, we accept that criticism entirely.'However, Mr Kirkwood points out that responsibility for informing the families of victims of the progress of a case lies with the police because they are the ones who will normally have built up a relationship with the families.

However, he continues: 'We do recogn ise that things did not go according to plan [in the Lawrence case] by any means and we very much regret that.

We are currently looking at our relationship generally with victims of crime as well as the way in which the CPS and police work together.

I can't say any more at the moment because no final decisions have been made'.However, Mr Youngerwood says that in relation to the libel report in the Observer, the CPS was also at fault in terms of the support he got.

He continues: 'I was let down to a great extent by the organisation, though I was given great support by individuals.

It wasn't a question of how I behaved outside work, which would have been much more difficult for the CPS, this was 100% to do with work.'Given that no-one for a moment believed I was a racist in the organisation and that my judgement had been totally vindicated on the face of it by the collapse of the private prosecution for the reasons I had said, I was not given the support [by the CPS] that I think I was entitled to.'However, others have more sympathy for the CPS as an organisation, and the trouble it has dealing with the vast number of claims on its time by many deserving victims of crime.

Mr Warren of the CLSA says: 'There is a very fine balance that the CPS has got to strike in dealing with the administration of justice because its got to look at the greater public good as well as the individual's need in terms of victim care.'It is a fact that some people are more demanding of attention than others and in an ideal world those people should be able to have the attention that they feel they need, but trying to create a level playing field and rules by which a large body operates isn't easy.'CRIMINAL LAW: RECENT DEVELOPMENTS, BY ANTHONY EDWARDSThe piece-meal implementation of legislative change continues apace.On 1 March 1999 amendments to section 60 of the Criminal Justice & Public Order Act 1994 came into force giving the police additional stop and search powers if a police inspector, or an officer of higher rank, believes that there will be incidents involving serious violence in any locality or that people are carrying dangerous instruments or weapons.

In particular there will be power to ask members of the public to remove any item which a constable reasonably believes is being worn wholly or mainly to conceal their identity, with a power of arrest on failure to comply.On the 1 of April 1999 there will be a further implementation of the Criminal Procedure and Investigations Act 1996.

On that day section 66 is implemented, significantly amending the provisions for the issue of a witness summons in the Crown Court under the Criminal Procedure (Attendance of Witnesses) Act 1965.

In future an application to the Crown Court for a witness summons must follow strict procedural rules including an affidavit in support and with evidence showing that the evidence sought is likely to be material in the criminal proceedings.

A witness summons will in future be able to order a person to produce a document at a time and place other than the time and place of trial.

The amendments apply to any proceedings for the purposes of which no witness summons has been issued under the 1965 Act before 1 April 1999.On 1 April the provisions of the Crime and Disorder Act 1998 relating to anti-social behaviour orders are also brought into force.

Solicitors will be able to apply for ABWOR to represent clients receiving a summons making such an allegation or to act for them as duty solicitor.Police station adviceThe fundamental principle of inferences fro m silence under section 34 of the Criminal Justice and Public Order Act 1994 is that the inference can never strengthen the prosecution case but only weaken a defence case once it has been found there is a case to answer.

To this basic rule there are now two serious reservations.

In Hart & McLean 1998 6 Archbold News 1, the court held that if the defence makes a submission of no case to answer, the prosecution may respond by pointing out that the defence has relied on facts not mentioned on an earlier occasion.

This would be significant, for instance, if a client had undertaken a no comment interview and then answered questions in a second interview or undertaken no comment interviews throughout but later handed in a prepared statement at the moment of charge.

If solicitors strongly believe there is no case to answer, they should advise clients to maintain a no comment position throughout, and while it would be sensible to take a prepared statement, this should be kept in the solicitor's papers for use only if the judge dismisses the defence submission that there is no case to answer.

However, the major reservations arise in relation to identification cases.

It is now clear that the solicitor will have to make a judgement, not as to whether there is a case to answer at the time of the interview, but whether there is going to be a case to answer at any stage during the investigation.

This will require considered judgement.

If there is going to be a case to answer at any stage it will be critical to raise any alibi at the first possible opportunity and at a time when the police can still check the alibi without the suspect being able to brief the alibi witness (see R v Taylor 1999 Crim LR 77).In addition the Court of Appeal is allowing inferences to be drawn from a no comment interview when new facts are later raised even when at the time of the initial interview identification procedures had still not been followed and there was at that time no evidence to implicate the particular defendant.

(See R v Beccles and Montague 1999 Crim LR 148).In R v Bowden 1999 The Times 25 February the Court of Appeal confirmed the law on the implied waiver of legal privileges previously set out by the court in R v Condron 1997 Crim LR 215.

The effect is that solicitors should be careful not to give reasons for a client deciding to make no comment and clients should similarly avoid giving reasons unless they are content that the prosecution inspects the solicitor's notes of the private consultation which preceded that interview; the giving of reasons waives legal privilege.

This would be particularly significant following the implementation of section 66 of the Criminal Procedure and Investigations Act 1996 as in future a witness summons against defence solicitors could require their attendance with their notes ahead of the trial of their client.Custody time limitsThe judiciary has shown an anxiety to reduce the time spent by those on remand prior to their trials.

In R v Manchester Crown Court ex p McDonald 1999 1All ER 805, the Lord Chief Justice reviewed all the relevant law and had particular regard to the decisions of the European Court of Human Rights under article 5 of the European Convention.

The court made clear that the purpose of custody time limits is to shorten the time to trial as far as is reasonably practical and to oblige the prosecution to prepare cases with diligence and expedition.

It is the court's duty to control extensions and defence solicitors should be slow to make concessions.

The burden of proof to obtain an extension is the civil burden and is on the Crown.

If the burden is not satisfied the extension may not be granted.

If the burden is satisfied the court is not obliged to grant the extension.Relevant factors influencing the court's decision are the time which would be taken by a competent prosecutor bringing the case to trial as quickly as reasonably and fairly possible.

The time limit is to be seen as a maximum not as a target.

While the lack of court facilities may be a ground for delay this will always be treated with great caution.

Other relevant considerations are the nature and complexity of the case, the extent of preparation required, the conduct of the defence team and the extent to which the Crown depends on others.

However, in R v CCC ex p Johnson 1999 Independent 25 January it was held that the delay by an independent laboratory was not decisive in allowing the prosecution to show that it had acted with all due expedition.

The Crown had a duty to keep the pressure on the laboratory.The Divisional Court identified as irrelevant considerations of staff illness or absence, the mere seriousness of the charge, issues of protection of the public and the fact that an extension would be short.Those granting extensions are under a duty to give reasons for any decision they reach.

To obtain an extension the Crown must show good and sufficient cause for the extension and all due expedition.

The two must not be confused.

In R v CCC ex p Bennett 1999 Times 25 January there was undoubtedly a good and sufficient cause, namely the illness of a prosecution witness.

However, the Crown could not show all due expedition as they had failed to comply with orders of court as to disclosure.SentencingIn relation to sentencing issues the judiciary is currently showing considerable initiative.

It is clear that there is a real wish on the part of the senior judiciary to reduce the prison population.

In Regina v Howells 1999 1All ER 50, the Lord Chief Justice has laid down a new test as to when a case is so serious that only custody will suffice.

The decision is of great importance at all levels of criminal work and in particular in the magistrates' court where many receive their first prison sentence.

Solicitors will need to emphasise the mitigating factors mentioned by the Lord Chief Justice, namely:Early admissions - particularly with evidence of real remorse;Practical steps to address addiction;Youth and immaturity;Good character,especially positive good character;Family responsibilities and physical and mental disability;The fact that it is the first custodial sentence.Similarly solicitors will wish to talk down any aggravating factors which are identified as the nature and extent of any criminal intention (the degree of planning) and the nature and extent of any damage planned or caused.In R v Ollerenshaw 1998 Crim LR 515 Rose LJ has emphasised that if a prison sentence is required it should be the shortest possible to achieve the objects of deterring crime and protecting the public.

Indeed it is now apparent that the Court of Appeal will involve itself in sentences which could never previously have been considered wrong in principle or manifestly excessive.

This has a particular significance for magistrates court work.

Following the decision in R v Warley Magistrates Court ex parte DPP 1998 Crim LR 684, magistrates have jurisdiction to handle a case worth 18 months (if there are two or more eitherway offences) because on a guilty plea, allowing for the discount, this will fall within the magistrates' jurisdiction.

By applying Olle renshaw to the sentence which might otherwise have been imposed the jurisdiction is significantly increased.In recent months the court has had to stress on many occasions that a criminal court may not sentence someone for an offence which is neither charged nor taken into consideration.

It is a matter for the prosecution to prefer charges which properly reflect the level of seriousness of a course of conduct.

If it fails to do so the defence must ensure that the court only acts on what is before it.

Thus in R v Rosenburg 1999 Crim LR 94 the court could only take account of the £2,500 of fraud proved and not the other £27,500 fraud which the judge took the view had undoubtedly been committed.

This will again be of particular significance at the plea before venue stage.