House of COMMONS
MINUTES OF EVIDENCE
PETER LODDER QC, TOM LITTLE and CHRISTINE HASWELL
USE OF THE TRANSCRIPT
Taken before the Justice Committee
Sir Alan Beith, in the Chair
Mr David Heath
Dr Nick Palmer
Mr Andrew Turner
Mr Andrew Tyrie
Dr Alan Whitehead
Q65 Chairman: Welcome, Christine Haswell, from the Crown Prosecution Service. You are the Negotiations Officer in the Crown Prosecutions Service.
Christine Haswell: Yes, from the Public
Q66 Chairman: Mr Lodder and Mr Little, from the Criminal Bar Association, the Chairman and the Secretary?
Peter Lodder: That is correct, yes.
Q67 Chairman: Welcome to you. We are grateful to you for helping us with the work we do on the Crown Prosecution Service. Could we usefully start by giving you an opportunity to tell us of any concerns you have about the budget pressures currently facing the CPS and the target structure which seeks to apply those pressures?
Christine Haswell: My union, as I say, represents most of the staff in the Crown Prosecution Service and we feel very concerned about the cut in budgets, particularly with respect to job losses, which in a time of increasing pressures on the criminal justice system, we feel, are adding to the stress and burden of our members working there. We feel that the targets are driving very much more pressure on the staff in the courts and in the supporting areas. We think that they are pressuring, not necessarily short cuts, but are putting a lot of stress on the individuals trying to meet them.
Q68 Chairman: Some people would argue that the direction in which
Christine Haswell: We certainly welcome the creation of the Associate Prosecutor. We feel that that has helped develop and enhance that role, and we supported that. However, as that has bedded in we have found that sometimes the amount of court time has exceeded targets and that there is, again, increasing pressure on them in terms of very short preparation time and so forth. We are concerned that under resourcing in the service is perhaps reducing the quality of the service that our members can produce.
Q69 Chairman: The Bar Council probably has a slightly different perspective on this. What would you like to say?
Peter Lodder: I am not sure that it is necessarily a different perspective because, in general terms, we see the value of an invigorated and active prosecution service which has a strong feeling of self worth, and I think that the position that the last Director and current Director have maintained is to grow within the Crown Prosecution Service a sense of purpose which the CPS has not had for a number of years, and so to that extent we think that that is a good, objective and a useful guide. Where we feel greatest concern is that that development is focused in some very particular areas so that it is being conducted at the expense of what we would see are the core functions of the prosecution service, and to that extent I think there is overlap in the position that Christine Haswell has just expressed and the position that we find. Really what we are concerned about is this. Yes, it is moving in the right direction of travel, but it is moving at a speed and with a disproportionate focus simply on getting people into court to be advocates at the expense of the performance of the organisation generally and at the expense of the work load of the people who remain in the office, the case workers, for example. What we are concerned about is that the rate of change that is being pursued is too rapid, and so what it means, for example, is that there are not enough people who are working towards the preparation of the case when it comes into court and that there is, in fact, no empirical evidence on the cost and quality advantages of the steps that are being taken. You indicated in your question of Christine Haswell that it appears to be saving money, and we are not entirely sure that that is a correct assumption. We invite consideration as to whether that is a correct assumption, but what it boils down is to this. It seems to us that, in a drive to get as many people as possible into advocacy, there has been a diminution of those available to perform the bedrock functions of simple case preparation and the like, the sort of concept of file ownership which was such an important feature of the Crown Prosecution hitherto. If I may summarise what has, I am afraid, been a rather long answer: yes, we see the value of the initiatives, but we question the speed with which we are being pursued because, in our view, the changes that are being undertaken are not being given, individually, enough opportunity to bed in.
Q70 Mr Heath: That was an answer that was based on the personnel implications and on the method of work. I just wondered whether you wanted to expand at all the outcome of that work, the output, as to whether you believe that resource implications have affected the prosecuting policy or the disposals which are available.
Peter Lodder: I think a difficulty here is the absence of any real analysis of what has happened as a consequence of these changes. When you talk about outcomes, do you mean that a number of cases have been moved through the system more quickly than they would have been say a year or two years ago?
Q71 Mr Heath: No, is the answer to that. I am asking has there been a difference in the level of charge applied or the outcome?
Peter Lodder: We suspect that there has been some under charging, as we indicated in our written submissions. We have reason to suppose that there is a tendency to accept inappropriate pleas. In other words, where a Crown Prosecution Service in-house advocate is prosecuting a case, that person will be more likely to accept a plea to a lesser offence - the section 18, section 20 scenario is a common one in this instance - and so to that extent, using the phrase "outcomes", we feel the outcomes probably are not in fact of the order to justify these changes, no.
Q72 Alun Michael: Could you say something about the time scale there just to clarify? You referred to current charges and I was not sure whether you were talking about the last six months, the last year, the last couple of years. My direct knowledge of prosecution services goes back quite a number of years, at which time it was a very ramshackle outfit with pretty poor quality barristers who could not find anything better to do appearing in the magistrates court, and it seems to have changed over recent years into a much more conventional organisation. Are you talking about a fairly small time scale?
Peter Lodder: I should not tie myself to a particular time frame. May I adopt your time frame? I entirely agree with you that there has over that span of time (and I have had a similar personal experience to yours certainly in terms of longevity) been significant improvement, and that is why, in response to your Chairman's invitation, I indicated our support and encouragement for what has happened. I think there has been generated within the Crown Prosecution Service a much better sense of identity and a stronger sense of purpose, so to that extent I think there has been significant improvement, and, may I say, we applaud it as well, because we are participants in the criminal justice system. As members of the Bar we both prosecute and defend. It is vital, in our view, that the criminal justice system acts efficiently and effectively in all its constituent parts. Our concerns really derive in recent time from the rapidity of the change What we fear is a target driven approach, which means that in the interests of hitting particular targets the individual areas are trying to drive the employees into court as often as possible, and what this leads to, in our experience, is people being instructed to go and present cases which they may not have been acceptable for had they been self-employed lawyers and for which they may not have sufficient experience or competence but that there is a pressure to do it because of the target. I have experience of individual members of the Crown Prosecution Service who are members of the Bar saying that that is something that they have come across, and so there is a concern when that happens. The criminal justice system, if that is correct, is not well served if there is that dynamic in operation within the system.
Q73 Chairman: Do you have members who work for the Crown Prosecution Service?
Peter Lodder: We do.
Q74 Chairman: Membership associations?
Peter Lodder: There are, yes. There are very few, and because there are so few, so as not to appear to be identifying anybody, my conversations are with barristers who are not necessarily members of our association, and so when I indicate conversations I am not necessarily identifying someone who is a member of the association.
Q75 Alun Michael: In the light of the Chairman's question, I am tempted to put my tongue in my cheek and say is there a tension between representing both employed and self-employed barristers, given the Bar Association is sometimes seen as a bit of a trade union for defence lawyers.
Peter Lodder: I am slightly saddened to hear you say we are seen as a trade union for defence lawyers; I personally prosecute as well as defend. We are an association for barristers who practise in crime, but I appreciate it is tongue in cheek.
Q76 Alun Michael: Practising crime is a phrase that needs to be used with care as well, is it not?
Peter Lodder: But I know in this company it will be understood!
Q77 Alun Michael: Can you say something about the responsibility of the Criminal Bar Association in terms of ensuring that the higher standards of advocacy are pursued within the CPS?
Peter Lodder: We do not have a direct
responsibility, because we are an association which provides a service to its
members. So unless individuals are
members of our association, they do not benefit in any significant way from
what we do to maintain standards. We run
educational programmes, which are largely attended by the self-employed Bar. As a matter of interest and since you ask, we
had a lecture last week at the Old Bailey, which a number of
Q78 Alun Michael: How much is your membership from within the CPS?
Peter Lodder: It is small. Our membership is, broadly speaking, I think
about 3,600 at the moment, and I think that the
Q79 Alun Michael: Do you encourage it?
Peter Lodder: I cannot say I have gone out and banged the drum to encourage them to join.
Q80 Alun Michael: Do you think you should?
Peter Lodder: I can see some value in it, yes, and certainly it is something which we as an association have always been welcoming of. I have to say, I do not go and bang the drum around individual sets of chambers either, so there is nothing partisan about that position.
Q81 Alun Michael: How do you see the development of
Peter Lodder: First of all, the Bar is increasingly focused on maintaining and developing high standards, so far as the criminal Bar is concerned, particularly in the area of advocacy. We run many educational programmes and you will be aware of the requirements that are placed upon practitioners to satisfy annually the requirements of continuing professional development. The objectives behind this are always to achieve the best possible quality of advocacy, and I appreciate that across a whole profession you will not always achieve it.
Q82 Alun Michael: Forgive me though, if your membership from within the
Peter Lodder: So far as our association is concerned, there is no lack of even-handedness. The association is available for any practising barrister to join. I no more direct someone to join it at the self-employed Bar than I do if it is someone who is at the employed Bar; it is a matter for individual choice; they pay their subscription and they are members. There is no threshold which they have to overcome, bar being practising members of the criminal Bar. In terms of how we may develop in the future, I have already recognised the importance of a thriving prosecution service. I recognise, as does the Bar generally, the importance of having a career structure within a thriving prosecution service, and I can see the sense and adopt the logic of the comments of the previous Director when he spoke of a service in which one could go in and become promoted through the criminal justice system, acting not just as a case worker and the preparer of a file but also, in due course, as an advocate, so that you can see the consequences of the way files are put together, the consequences of the way an investigation is conducted. I think all of that is laudable and it is, if I may say so, commonsense. From our point of view at the criminal Bar, the focus of our work is entirely upon advocacy, and therefore we encourage and seek to promote the highest standard of advocacy. We see our position as being one which can happily run alongside the development of advocacy within the Crown Prosecution Service. What troubles us is that the statements of where the Crown Prosecution Service wish to go do not entirely fit with the actuality of what they do. If you were, for example, to look at the framework, and you have seen the framework which is annexed to our submissions----. I wonder if I might just take you to it because I think it is helpful. This is a document which came about as an agreement between the Crown Prosecution Service and the Bar.
Q83 Chairman: I do not think all members have that in front of them. We have copies of it but I do not think it is in front of us at the moment.
Peter Lodder: If there are spare copies, I wonder if they might be handed out because I think it bears examination in the light of where we are now.
Q84 Chairman: You are referring to?
Peter Lodder: I am referring to a document which is entitled "Crown Prosecution Service".
Q85 Chairman: Where in the document though?
Peter Lodder: The second page, which flows on from a sub-heading called "Underpinning statements".
Q86 Alun Michael: The second page of the annex?
Peter Lodder: The second page of the
annex, yes. The first full paragraph,
Q87 Chairman: Are you saying that the targets conflict with what is the declared policy of the CPS?
Peter Lodder: Yes.
Q88 Alun Michael: Can I question that. Surely you would accept as well that getting cases before the court quickly, getting them dealt with efficiently and moving things on, is something that actually the court system has not been very good at in the past and there is some good reason for trying to improve its performance?
Peter Lodder: Absolutely, I totally agree with that, but the thing is that if you are going to have that sort of initiative and that initiative is going to succeed, then these sorts of framework principles need to be followed. There is no point in advancing a system so that you have early management hearings and then finding that when you get to trial the system breaks down.
Q89 Alun Michael: Finally from me, would you not accept that you should be arguing for the right balance between those things, rather than seeming to imply that the targets ought to go out of the window?
Peter Lodder: No, I do argue for the right balance, but the reason I focused upon what I did in answering these questions is because the essence of your question was are they not, in fact, getting through the work, getting it done, achieving a successful outcome, and my argument, or my comment rather than argument, because I am not trying to argue, is actually it depends how you assess your outcome and is the outcome really the development of what the stated policy said it would be.
Q90 Mr Tyrie: I want to try and summarise what I think you are saying. I will try a few sentences and you can interrupt or qualify each one as we go. You accept the principle that there are advantages to in-house advocacy?
Peter Lodder: Certainly, yes.
Q91 Mr Tyrie: You accept by implication that the
Peter Lodder: I think there are a number of reasons why the Crown Prosecution Service wish to pursue this policy, and one of them (and I think it is a perfectly legitimate policy) is to give the organisation as a whole a sense of purpose and a sense of identity. I think that one of the difficulties that the CPS laboured under for many years was that it felt that it was just a somewhat shambolic and often criticised organisation, and undoubtedly it has gone a long way since those days. There are also the other factors which you have mentioned, but I do not think it is one factor rather than the other; I think there are a number of issues there.
Q92 Mr Tyrie: One can reorganise the
Peter Lodder: People did.
Q93 Mr Tyrie: ---but at the end of the day you want to measure the output?
Peter Lodder: Yes.
Q94 Mr Tyrie: And the output is measured in quality of justice per unit of cost, is it not?
Peter Lodder: Yes. I am interested as to exactly how that measurement can be made.
Q95 Mr Tyrie: That is a difficult question, but by implication of everything you have just been saying, it is an attempt to do so, is it not?
Peter Lodder: Yes, I agree.
Q96 Mr Tyrie: That is why I am trying to get you to agree or continue to disagree with the conclusion that the CPS, although they may decide that there are various organisational reasons for doing this, have at the root the objective of securing either better justice or the same quality of justice at less cost?
Peter Lodder: I am not at the moment persuaded that it is at less cost, because I do not think it has been properly costed, which is why I made the observations I made at the beginning. It may well be that, for other reasons, it is worth paying that cost, but I think that the focus has become so finally pointed at targets that I think the cost implications have become somewhat blurred.
Q97 Mr Tyrie: Let us put the cost issue to one side and come back to that in a minute. Are you persuaded that they are at the moment capable of doing this at the same level of quality of justice?
Peter Lodder: That is a difficult question to answer. There are some extremely good practitioners in the Crown Prosecution Service.
Q98 Mr Tyrie: But the fact is you do not have a clear-cut answer, which is, "No, I think the quality of justice is declining"?
Peter Lodder: My personal view is that I do think the quality is declining, yes, but I do not think that that means that their objective is not to try and raise it; I think their objective is to see that, and they have some people who undoubtedly can, but in general terms I think it is too much of a mix.
Q99 Mr Tyrie: I am trying to get to the bottom of your concern. It seems that you are now saying that the quality of justice is declining and it is costing more money?
Peter Lodder: No, I think the quality of justice will decline if---
Q100 Mr Tyrie: I am sorry to interrupt, but you just said a moment ago there is no evidence that they are saving money.
Peter Lodder: No, because I do not think there has been a proper analysis of how much it is costing to pursue this course. Can I make what may appear to be a slightly superficial observation? When you employ someone in-house you have a number of structural costs, of which I am sure you are aware - the building, the secretarial support, whatever it is, sick pay, holiday pay, pensions, et cetera, et cetera - and you also have, once you have recruited someone, the liability to continue employing them; whereas if you come to the independent Bar you can pick them up and drop them as you wish.
Q101 Mr Tyrie: Had you not better set to work doing that number crunching on behalf of your members ASAP if you want to make the point that there maybe hidden costs which are not embedded?
Peter Lodder: It is a one-sided exercise, is it not? We need the data. We do not know how much.
Q102 Mr Tyrie: Had you not better write down the data, send it to us and we will do our best to have it made available?
Peter Lodder: We would be very happy to do that.
Q103 Mr Tyrie: That would be a first step. I think a second step that might be helpful is trying to establish, since you agree that there is, in principle, some benefit to in-house advocacy, telling us where the optimal point is. You have argued that it is not zero and you are presumably going to argue that it is not 100, so it must be somewhere between nought and 100 per cent and there must be some explanation for a view that lies somewhere between those, and I would be grateful to see that.
Peter Lodder: I would be very happy to assist you with that. I do not think one can fix it precisely. Interestingly, certainly the last Director was most reluctant to commit himself.
Q104 Chairman: We are not asking the Director, we are asking you.
Peter Lodder: I understand that.
Q105 Mr Tyrie: Good; we have got that far. That leaves one last question, it seems to me, from what I have heard. At one point you seemed to set aside these arguments, or at least deflect them a little, by saying in any case it is all happening too fast.
Peter Lodder: Yes.
Q106 Mr Tyrie: That is correct?
Peter Lodder: Yes.
Q107 Mr Tyrie: When you have established for us what this equilibrium point might be, do you have a view about what speed it could take place at which would be sensible or optimal?
Peter Lodder: Can I take that point, with your last point, and say that what we are dealing with here is the concept of justice, and the concept of justice does not easily fall into an economic assessment because justice is a general thing, a general concept, but in simple terms the speed at which what is happening at the moment is too rapid because, for example - let me come back to what Christine was saying about her members - we have a situation where, because people are being taken out of the office and put into court as often as is possible, those who are left in the office are under greater stress because there are not enough of them. Under stress they then do not do what they might do to get the files up to the requisite standard, the stress comes back through the system because, for example, it goes to court, the judge throws it out because the file has not been properly prepared and it comes back down through the system.
Q108 Chairman: These are assertions. Is there evidence to back this up?
Peter Lodder: I cannot give you a specific case where a judge has, for example, thrown this out in terms of naming it, but I am aware of it. I am aware of it from what judges have said as to their experience.
Q109 Mr Tyrie: Sir Ken Macdonald has said that when allegations of poor quality CPS advocacy have been looked at in more detail they have been found to be the same that are being reported several times.
Peter Lodder: I cannot comment on which ones he has looked at or someone on his behalf has looked at, but I can tell you, in my direct experience, of cases in the north of the country in recent times. For example, a rape file came through to a court and the judge discovered that there was no statement from the complainant in it.
Q110 Chairman: I think what we would need to be convinced by this line of argument, and I do not expect you to do it just now, is to be directed towards some measurable evidence that the situation in this respect is worse than it was before the present level of in-house advocacy.
Peter Lodder: I understand that. May I say, there is a difficulty for us as a profession providing this material, which is that it stems from those who act on the part of the CPS and there is an obvious reluctance to indicate these issues because of livelihood.
Q111 Mr Tyrie: Well you had better tell us what we need to ask and we will get on with it.
Peter Lodder: May I invite you to consider this? How many judges have you got coming before you to explain their experience? They are in a position to tell you of their direct experience without any fear concerning their either being partisan or indeed their income.
Chairman: We have another area that we need to move to and I am going to call on Dr Whitehead.
Q112 Dr Whitehead: This question is particularly for Christine Haswell. In the PSC evidence you raised the issue of the question of the relative roles of the CPS and other agencies in criminal justice system and the extent to which there might be either tension or confusion between those roles. You mention, for example, the possible confusion about police and CPS roles within witness care units and also the perception of CPS independence, where they are working in single work spaces together, and whether the claimed efficiency saving might, on the other hand, threaten CPS independence. Do you think there is a challenge facing the CPS in terms of its perceived or actual independence in working with other organisations across the criminal justice system?
Christine Haswell: Generally, our members in
Q113 Dr Whitehead: Do you mean by bullying, for example, "You must prosecute these people we have detected", even if you are not absolutely certain this is the best way to proceed?
Christine Haswell: I am not saying that has actually happened, but there could be the potential there for that if you have got very small teams of CPS located in a much bigger environment dominated by other justice professionals, yes. There is that potential.
Q114 Dr Whitehead: So do you think that the whole question of co-location
under those circumstances is perhaps a bad practice to start with, or do you
think there are ways in which that experience and the effectiveness of the
Christine Haswell: We have a policy from the members on the ground that this is not a popular situation, and although we have been involved in negotiating when these moves have taken place - we have talked to Health and Safety about accommodation and things like that - it is not popular.
Q115 Chairman: Are you saying that co-location is not popular?
Christine Haswell: No, it is not popular. Our members tell us that they would prefer to work in a Crown Prosecution Service with other Crown Prosecution Service and to keep that physical distance as well as, if you like, a sort of structural distance.
Q116 Mr Heath: Are you saying that CPS staff may be having direct professional contact with people who are outside the CPS? I am not talking about an advocate discussing a case with a police officer, or whatever, but are you saying that a police officer might come into the office and say, "I do not like the way you are putting that file together. Do this; do that"? That seems to be very unprofessional conduct.
Christine Haswell: It does, yes. We are concerned that there is the potential
for that sort of thing to happen more if you are talking about a very, very
Chairman: We are waiting to hear from what voluntary sector, so we are going to bring this session to a close.
Q117 Mr Heath: I am sorry to interrupt. I had not realised that there was any prospect of CPS staff not being entirely responsible to their line managers.
Christine Haswell: They are; I am just saying that there is this potential there. I am not saying it has happened, but there is a concern that it could.
Q118 Mr Heath: I understand that.
Christine Haswell: I do not want to cast a slur on the professionalism of---
Q119 Dr Whitehead: You have mentioned in your evidence that the potential
may arise from the fact that there are different targets for the police and the
Christine Haswell: Good working practices are
something that we get. The thing with
Q120 Mr Turner: Is this happening or is there a potential for it happening?
Christine Haswell: I would not like to say that it is definitely happening. I do not know that this definitely happens, but it is enough of a concern to our members for us to feel that it was worth putting in the submission in that it was something that people were concerned about.
Q121 Chairman: Thank you very much. Thank you to all three of you for helping us this afternoon. Of course, if you have after-thoughts or, indeed, responses that have not been raised that you feel you want to let us have later, by all means do so.
Peter Lodder: May I just ask what the time frame is for the responses?
Chairman: The sooner the better, but we have more evidence sessions still to go on this. If you could do so within the next two weeks, it would be very helpful and more likely to be of use in the in report.
Witnesses: Gillian Guy, Chief Executive, Victim Support, and Paul Farmer, Chief Executive, Mind, gave evidence.
Chairman: Ms Guy from Victim Support and Mr Farmer from Mind, thank you very much for joining us this afternoon. We are particularly keen to hear from you. Dr Palmer, is going to begin.
Q122 Dr Palmer: Thank you for coming. One of the things that we all run into as constituency MPs is the expectations of victims of the criminal justice system. How realistic do you both feel that they actually are?
Gillian Guy: I think that the expectations from victims and witnesses tend to be what we give them as expectations, and we spend the rest of our time perhaps trying to live up or down to them depending on what their experience actually is. A lot of that is about having set out our stall as putting victims and witnesses at the heart of the criminal justice system when actually that is very hard to prove to anybody who then goes through the system because it is process driven rather than people driven, and that is what we spend at Victim Support a lot of our time trying to change the balance on in terms of how those people perceive and experience what justice is for them. I think, insofar as the Crown Prosecution Service is concerned, there is a great deal of power that resides in the CPS, which is seen by victims and witnesses, and yet it is not fully explained to them, actions are not fully explained to them, and so they are immediately up against a lowering of expectation or a dashing of those expectations as they come through. Obviously, the CPS are part of a much wider system. There are about 13 agencies, all with different protocols, as we have just heard, different procedures, cultures and expectations themselves of what the system will be doing, and it is a very difficult place for victims and witness to really understand what they are supposed to be getting. I suspect that they believe that prosecutors are there as their barrister, as their advocate, and that is not really properly addressed on their behalf and is not properly explained. Many times we get witnesses saying to us, "When am I going to meet my barrister? Why have I not got the same access to my barrister as the defendant has?", and, "Why do I have to deal with so many different agencies, whereas the defendant only has one advocate that they have to channel their process through?" I think the answer is that we really need to define what those expectations realistically can be within a criminal justice system and then seriously live up to them.
Paul Farmer: I support much of what has been said. I would go a little further to suggest that in many cases people with an experience of mental health problems have quite low levels of expectation because of their constant experience of trying to seek access to justice only to be turned away. A lot of the work that we did in our Another Assault report, which I know is referred to in our submission to you, suggested that significant numbers of people experience victimisation and harassment but are fearful of contacting the criminal justice system in that broadest context because they feel they will not be believed, they feel that their evidence will not be taken seriously, and I think for those people who experience mental health problems, the access to support and help from the criminal justice system which they and we all see as fundamental part of our citizenship is often denied to them. Although I know post bags are often maybe full with people who feel as though they have some right to pursue cases which, on the balance of probability, may not be the appropriate ones for a system to be pursuing, I think we would argue that in far more cases people are not even making contact with the system because of their poor experiences.
Q123 Dr Palmer: We received a copy of the Prosecutors' Pledge. Does the victim see this pledge at any stage? Is it given to them at the beginning? Do they see it at all?
Gillian Guy: I think it is potentially one of those issues that is not consistently applied. I think a key theme running through what I want to say on behalf of victims and witnesses would be about inconsistency and about the differences of approach and a lot of dependency action on individuals and personalities as opposed to being able to understand the system in full. As far as the pledge is concerned, I cannot say how many people see it. I would speculate as to how many people would understand it and recognise it. I think that some of the issue is putting words on paper which do not match how it actually feels to be a victim and a witness. One of the things that we clearly feel very strongly about are special measures in court where, quite clearly, people are not being identified for those special measures at all sometimes, and we have discovered ourselves as the witness service 18,000 people on the day of coming to court who should have been identified for special measures: so they have been failed on two occasions coming through the system and they are then in a court process without that assistance. We also find that notification and applications are made too late, when the courts have no choice, according to their discretion, but to refuse those applications, and we also find that people have no idea what it is they might expect in good time to prepare for the special measures that they might receive in court. That is but one example of where, following on from that theme, expectations are not realised. I also think there are issues around the pledge of the training that is given in order for the legal profession, from which we have just heard, to actually be able to relate to people rather than process and be clear about what it really feels like - and I use that word again - what the impact is of the justice system on individuals, and I also think that there is a cultural issue in those organisations (and I have mentioned the 13 different agencies involved) in actually seeing that victims and witnesses are the most important element of that system.
Paul Farmer: In the context of mental health, I think special measures are extremely rarely used with people who experience mental distress or mental health problems, and the understanding of the prosecutors' pledge, in most cases, will be quite limited by victims themselves. I think this is particularly relevant in the context of the way in which evidence of previous psychiatric history is utilised, where the pledge is very clear that prosecutors have a responsibility to protect victims from unwarranted attacks on their character, and yet in many cases we have found, from work that we did, that previous psychiatric history was being used inappropriately to discredit or undermine the effectiveness of the evidence from a witness.
Q124 Dr Palmer: Among the pledges are "where practical seek a victim's view when considering the acceptability of a plea". As I understand the system, correct me if I am wrong, the decision is sometimes taken after only informal contact with the CPS. The police may decide simply to give a caution. I have a constituency case where a child was allegedly beaten up and the police officer decided that the adult had been mildly provoked and just issued a caution. The alleged victim was not consulted there. Do you feel there is a gap there? Should this pledge apply to the police as well, or is it sufficiently covered by them consulting the CPS?
Gillian Guy: I believe there are two issues there. One is whether it actually happens under the pledge with the CPS (and again I use the terms "consistency" and "individuals" and "individual approaches") because in some instances prosecutors will go to great lengths to have that consultation and we know that victims then feel quite valued in the process, they understand what has been going on and they appreciate that. We also know in other instances they are not consulted and sometimes not even told, and that includes the family as well as the victims themselves. As far as extending it to the police, I think if we have standards of behaviour for the system throughout for victims and witnesses they should apply to all agencies in it.
Q125 Dr Palmer: Another set of victims of the system are people who
are wrongly accused. We do get cases
where people appear to have waited an inordinate amount of time, like a year,
to be told that they will not be prosecuted and sometimes - and this is
very anecdotal - there will be a question, where an accusation seems to be
fairly frivolous, that it actually takes longer to dismiss because the
Paul Farmer: It is not something we would have a view on, I do not think.
Gillian Guy: I think there would be a long argument as to what amounts to frivolous accusations, which I probably should not get into here. I think that anything that helps the system to act more effectively and quicker, so that people understand what is happening, would be good and, of course, the interests I would be looking at there would be of the witnesses waiting in the wings, who will be clearly stressed by whether they have to come forward and be witnesses or not, and the sooner they know that and know whether they have been deemed to be frivolous, perhaps with an explanation as to outcome, the better.
Q126 Julie Morgan: I notice that with certain victims of sexual abuse, for example, or domestic abuse, if a charge is withdrawn this can be extremely devastating. Do you feel that the CPS usually deal with that situation as well as they can?
Paul Farmer: I think this comes back to the question about the interface between the various arms of the criminal justice system. Often the individual agencies are trying to get the process working in the most effective way, but there seems to be a lot of problems and barriers on the way to helping these things happen most effectively to the individual, and it is the individuals, whether they are the witnesses or the victims, who are quite often carried along. A number of people in our survey talked about their experiences, feeling as though they were passengers in a system which was being driven by other people rather than the system being there for them themselves. I think the question of pace is an important one for ensuring that people are treated with dignity and respect as well as being treated appropriately, justly and fairly.
Q127 Julie Morgan: Ms Guy, do you want to say anything on the more specific point that Ms Morgan raised about where, for example, a rape or sexual abuse case cannot not proceed and the way the victim is dealt with?
Gillian Guy: I think the word used was "usually", and I think this is a consistent theme of mine really, which is that there is not necessarily a usual situation. There are people who understand the ramifications of that and will go, as I said, to great lengths to give the explanation, and it is a very difficult situation to deal with for a victim who may then suffer further victimisation as a result of having pursued a case; so it does require as well joint working across agencies to pick up that issue and be able to communicate, not just with the victim, but with those other agencies as well to be able to help. I would say that from the previous evidence our experience is that co-location of agencies actually helps in that kind of working just to make sure that that communication happens and also that the people perspective is put into the system at every possible opportunity.
Q128 Alun Michael: Could I stick with this business of the victim's experience. I wonder if we could sharpen up on what is needed. You have both made reference in the questions to the Prosecutors' Pledge, and I would like to be clear what the problem is. Are you saying that there are issues with the pledge and what it covers, or are you saying the aspirations are right but it is not what drives the way that prosecutors operate?
Gillian Guy: I believe that the aspirations are right. Indeed, when you read the aspirations they are very difficult to disagree with. I will not slip into anecdote, but I remember first joining Victim Support, having a meeting with the DPP and being presented with the Prosecutors' Pledge, and I thought, "Fantastic; so it is going to be a good experience then." My experience after that---
Q129 Alun Michael: You have recovered since!
Gillian Guy: Yes, I have learnt a bit since then. I think really it is about words on paper being given life; the people expected to give that life actually being given the tools to do it; so that it is no good saying to a prosecutor, "You were that type of prosecutor yesterday and today you are going to be like this", and we see a difference when there are new people coming into the CPS, for example, as opposed to people who may have been there for a very long time who are expected to change their very thinking process. I think that is very difficult.
Q130 Alun Michael: Sure, but I am trying to get it how we use this. Is this something that is not sufficiently built into the targets and the performance expectations within the department and, therefore, is ineffective, is it something that you think is hung on the wall in the average prosecutor's office or carried around in the wallet as something that is valued and important, or is it just something that is produced when you meet a new victim's concern?
Gillian Guy: Probably all of those, and that is the consistency point. I think it is something that can work, but, first of all, the leadership has to be about, "We will make this work", and then the support has to be about, "We will give people the wherewithal to make it work." I recently spoke at a CPS conference, and what struck me was that there were modules of training for prosecutors who would be dealing directly with victims. I would argue that you do not necessarily have to deal directly to understand what impact you are having, but let us just take that. Those modules have been taken up by something 20% of prosecutions. They have been made more mandatory than they were in 2001, and, obviously, we are keeping an eye on what mandatory actually means and what impact that has, but the question there has to be after that is: "How does that change the behaviour of prosecutors and how are we actually..." This does not stray into all of those other areas, but whenever we have something that is written either as legislation or as guidance, we do not tend to follow up and evaluate the impact that that is having, and I think that the leadership needs to take that evaluation into account.
Q131 Alun Michael: So your criticism is not of the Charter as such, it is that it needs to be seen as important and it needs to be driven within the service?
Gillian Guy: My criticism is: I sat at a meeting with a prosecutor who said, "I have got to talk to a witness and tell them they will not be credible. I cannot do that. It is not the job of a prosecutor."
Q132 Alun Michael: As far as complaints are concerned, what is your experience when people have not met the expectations that a victim from the Prosecutors' Pledge might reasonably expect?
Gillian Guy: I think complaint is a whole other issue in the criminal justice system.
Q133 Alun Michael: I am coming on to it, so I am asking for the relationship between the pledge and the complaint.
Gillian Guy: I would wish anyone luck who wanted to see their complaint through, and I would like to see that there was a channel that enabled people to understand where the complaint was going to be handled, that it was not their problem to understand who they had to send the complaint to in the system and that once the complaint had come through they would be assured of a change in procedure so it would not happen to them or anyone else again.
Q134 Alun Michael: Yes. The answer did not relate to the pledge to a complaint.
Gillian Guy: I would include the pledge in that.
Q135 Alun Michael: You would merely include it within it?
Gillian Guy: Yes.
Q136 Alun Michael: The other thing in relation to following up where the experience of the victim is not what is supposed to happen, we had a document on the Code of Practice for victims of crime from the Office for Criminal Justice Reform, which points to, I think, ten service providers and, when it comes to the question of how to complain, provides ten different avenues of complaint. Given that the two of you have referred several times in your answers to the criminal justice system as if it is a single system, is this satisfactory? Should it be changed? Should there be a single complaint system for the whole of the criminal justice system? What is the way forward?
Gillian Guy: I think that the important thing is that people receiving complaints want to receive them and act on them. In order to demonstrate that a complaints procedure has to be as clear and simple as possible and it should not be the job of a complainant to work their way through. The problem with the code is that, as you have rightly identified, there are many avenues to go and complain into and, very often, someone going through this system, which as you say has many parts, will not know which person has let them down or which organisation has let them down and will not know where to go. If they do not give up at that stage of trying to find out who to complain to, they then have to trot along to an MP and go to the Parliamentary Ombudsman. Our information is that in the three years in which that code has been around the complaints to the Ombudsman are in single figures. I do not think that the complaints about criminal justice system are.
Q137 Alun Michael: Which demonstrates?
Gillian Guy: Which demonstrates that there is not much getting through to the Ombudsman, because it is yet another hurdle for a complainant to get over. So the short answer to your question is, yes, I think there should be a straightforward single complaints system.
Q138 Alun Michael: What do you see as the role of the prosecutor, which is the reason that I started with the pledge? Should the prosecutor be managing that victim's experience. Is there a role there?
Gillian Guy: Yes, I think there is. Every person who plays a part in the experience of a victim and witness going through the justice system has a responsibility to look after that experience.
Paul Farmer: We would absolutely agree that there is a role for the prosecutor in ensuring that their experience, particularly as a witness as opposed to other formal parts of the criminal justice system who might be considering their experience as a victim, need to receive the appropriate degree of help and support. We would also support a single-track complaints procedure. Many people have to go to great lengths in order to pursue their complaint as a victim and if they find themselves unfairly treated, in their view, then we should make it as straightforward as possible for them to pursue appropriate complaints. At the moment it is a mine field.
Q139 Mr Heath: It is a very brief point, but it is a concern of mine. I have sensed from my contact with victims over the years that there are occasions in which the police actually find the Crown Prosecution Service a convenient whipping boy and will say to the victim, "We have done everything we can, but we really cannot understand why the CPS has not prosecuted", and that puts the CPS, does it not, in very difficult position in actually trying to communicate to a victim what the situation is in regard to their case if they appear to have the police saying, "That is a load of nonsense. We know better." Is there a way of making sure that the different elements in the system actually give the same explanation and understand one another's problems in this respect, because surely that must be better for the victim at the end of the day?
Gillian Guy: I would say that would be a laudable aim for the system. I think what it actually points to is that it should not be the criminal justice system, it should be a criminal justice service and that that service then will have its outcomes and its objectives that all of the agencies that are party to that need to sign up to, and that is when they can start supporting one another, and working in co-location situations, working together for those common objectives, helps with that situation. What has happened so far is that the separation has enabled people to pass the buck.
Paul Farmer: Our experience is that
people's experiences of the police and the
Q140 Dr Whitehead: I wanted to raise that particular issue, because on this occasion the witness was a victim as well as a witness, shall we say.
Paul Farmer: Yes.
Q141 Dr Whitehead: Obviously there will be witnesses who are victims and witnesses who are not victims. How effective do you think a witness care unit as far as witnesses who are not victims is concerned?
Paul Farmer: I think for those people who experience mental health problems, particularly where they are working, where the victim is also somebody who has a mental health problem, as is quite often the case with people who live in communities together, their experience is fairly patchy. I think as with a non-physical disability, if you like, people with mental health problems tend to not always fall into the category that are most obviously likely to receive the right degree of support, and a lot of work has been done to try to improve the understanding, but I think a key point that I would want to make across the whole of this piece is the need for better training and understanding around mental health and mental health issues for all staff within the criminal justice system, whichever service they might be working in. Unfortunately, many people tell us that the people they work with, their understanding across the system still does not really take account of the reasonable adjustments that are needed to be made for somebody with a mental health problem.
Q142 Dr Whitehead: Clearly, as you have pointed out a little earlier, the victim and the witness are essential elements in the whole process, and, therefore, the idea that the CPS, for example, should take great care in making sure that the witness is able to give the best testament possible, that the experience of the witness is as good as possible and the witness feels fully supported, are essential elements, you might think, in the process. How well do you think the CPS actually does that and how well do you think it works with other agencies to ensure that happens?
Paul Farmer: Unfortunately, I think there
is a theme coming through from our evidence around the patchiness of the
experience for people and, again, the experience for many people with mental
health problems in terms of the support they receive from the
Q143 Dr Whitehead: It would be possible to argue, I guess, that if we
identified the fact that the
Paul Farmer: You are referring, presumably, to the cross-examination process.
Q144 Dr Whitehead: Indeed.
Paul Farmer: I suppose that is where you
come back to the validity and importance of the Prosecutors' Pledge. The prosecutor clearly has a responsibility
to intervene where they feel that the questioning is inappropriate, and the
prosecutor in that sense does not simply have the responsibility to prosecute
but to support their client, the victim, in terms of the process that that
victim is experiencing; and if that support is more forthcoming, I think there
is clearly a significantly important role for
Gillian Guy: I think it would be a very dangerous path to follow that allowed a prosecutor to make those kind of decisions on behalf of victims and deprive them of justice, because the overall aim is to try and get justice and stop things from happening again. That is the primary aim of victims. I think it would help enormously if organisations like ours were involved in preparing the training for prosecutors and getting that understanding into the training base and if we use the tools that are available to us. As Paul has said, if we had more pre-trial visits for victims and witnesses, if we had a referral to our own witness service to give the kind of training support that was available and to organisations such as Paul's as well, if we had vulnerable intimidated---. Here is the irony. We can stop people actually going forward with a case, yet we cannot identify 18,000 people a year as vulnerable intimidated witnesses and give them the support the require to go and give the evidence in court. So if we actually use the tools we have got, improve the training that we have got and actually get a better commitment to the outcome of justice, then we can probably solve some of these problems without going that far.
Q145 Mr Heath: Mr Farmer made the point of the patchiness: that some people have good experiences and others have bad experiences. My question is this. Obviously that can be down to individual practitioners and their attitude, or it can be down to poor management, poor training, a culture within a particular criminal justice area which is failing to understand the principles behind pledge, et cetera. It does seem to me to a certain extent in the former case, but certainly in the latter case, that that is something that is down to national management in the form of the DPP and also the inspectorate, who certainly if it were a police force in an area, which I am more familiar with, I would be expecting HM Inspector of Police to be doing a thematic inspection across each force area and basically grading the results and pointing out the areas which are falling short. Have you ever put that to either the DPP or to the Chief Inspector; that there is a case for naming and shaming those criminal justice areas which are failing to meet your reasonable expectations?
Paul Farmer: I think on the form of the
question about the role of the management responsibility, clearly there is a
management responsibility. Since our
survey was published last year, I think we have found an increasing welcome at
the door of the DPP. I think we are
beginning to make some progress in that area, although there is a huge distance
to travel as we overcome the stigma and discrimination around the area of
mental health. From our point of view as
a campaigning organisation, I think we can see a value in having a clear and
transparent process which reflects the quality that is being delivered in
different parts of the country. As
someone who has participated quite significantly in various league tables
around health in the context of the work of the Healthcare Commission, there
are clearly some benefits to be had from it.
However, it is also important to recognise that in some of these cases
this is not simply a question of the performance of a particular cluster or
particular force, as it is often not particularly the performance of a whole
set of clinicians in the health environment, but sometimes it is a single
prosecutor or single groups of prosecutors or single groups of police. So I think we need to ensure that any such
approach, and I think we would welcome that kind of apparent transparency, had
both within it a qualitative framework
which allowed a reflection, and ideally a reflection which is led by the
people who have been victims in the past.
I think that would be an excellent way of thinking about a framework
which allowed for a truly qualitative evaluation as well as something which
could lead to headline grabbing accusations of tick-boxes. I think we want something that is really in
depth in terms of quality, but I think we would certainly support an approach
which gave a greater degree of transparency to overall performance, and we
would certainly be encouraging the
Gillian Guy: I think there are two things
required. One of them is commitment to
see this kind of change and to see victims and witnesses have a very different
experience and one that they would not mind participating in again: it is not
something we would want to be in but at least feel that it worked to our
benefit in some way. I believe there is
commitment on the part of the
Chairman: Thank you both very much indeed. We are grateful for your help this afternoon. We are now going into private session.