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Justice Committee - Minutes of EvidenceHC 745-i
Taken before the Justice Committee
on Tuesday 18 January 2011
Sir Alan Beith (Chair)
Mr Robert Buckland
Mr Elfyn Llwyd
Examination of Witnesses
Witnesses: Keir Starmer QC, Director of Public Prosecutions, and Peter Lewis, Chief Executive, Crown Prosecution Service, gave evidence.
Q1 Chair: Mr Starmer and Mr Lewis, welcome. We are very glad to have you before the Committee. Before I ask Yasmin Qureshi to open the questions, we have interests to declare. We will perhaps go round the table.
Mr Buckland: I have been a criminal barrister for 20 years. I am not currently conducting any cases but I still sit as a Recorder of the Crown Court.
Mr Llwyd: I have prosecuted for the CPS as a barrister over the years. Since April of this year I have been non-practising.
Karl Turner: I have prosecuted for the CPS as a barrister. I am still a member of my chambers in Hull but I have not worked recently.
Yasmin Qureshi: I used to work for the Crown Prosecution Service as an in-house lawyer. I have a member of my family who still works for the Crown Prosecution Service but the last time I was employed by the CPS was over seven years ago, although when I was in chambers I had instructions from the CPS to prosecute as an agent.
Chair: Thank you.
Q2 Yasmin Qureshi: In light of the Spending Review and cuts that are taking place, what discussions were had between yourselves and the Attorney-General and his Office during the Spending Review? Do you think you received sufficient support from your Minister for your submissions?
Keir Starmer: We had detailed discussions with the Attorney-General about the Spending Review and the implications, and tested the implications. We had all the support that we asked for.
Q3 Yasmin Qureshi: What can the CPS do, if anything, to reduce the cost of Very High Cost Cases? Is there any alternative to this?
Keir Starmer: Very High Cost Cases are important. They are few in number. There are about 140 a year but they take a lot of money: roughly about £24 million in counsel’s costs in the last year for Very High Cost Cases so they are really important for us. Can I tell you what we have done so far and what we are trying to do going forward? So far what we have done is to set up a scheme inside the CPS where we have Case Management Panels. That will require, particularly on the very big cases, the individuals within the CPS who are running the case to come before a panel and explain the approach that they are taking, the indictment that has been drafted, why they are prosecuting the number of defendants they are and what the case strategy is. It looks at issues such as whether disclosure has been complied with, etc. That regime is in place. We obviously want to keep that and expand it so that we capture more of our cases.
Going forward, we are adding to it in two ways. First, we are looking with others, including the senior judiciary, at the whole question of disclosure because disclosure is a major problem in these cases and is very, very resource-intensive. We are working with the senior judiciary on that to look at whether the test is right and to see whether we can approach it in a different way. Also, under Peter Lewis’s auspices, we have a group looking at Very High Cost Cases to see whether there are other ways in which we can prosecute them more efficiently and effectively. Peter, is there anything you want to add to that?
Peter Lewis: I think there is a particular problem now because most enterprises-and this is criminal enterprises and legitimate enterprises-store their information on computers. When the police and other investigators seize that information it can potentially provide mountains of paper if we converted all that and printed it off. It is to find the best method of focusing disclosure on the issues that are germane to the trial that is the big challenge for us now.
Q4 Yasmin Qureshi: The Chief Inspector of the CPS told the Law Gazette that the CPS was "already severely stretched" in July 2010. Do you agree with that? Then we have the Chancellor of the Exchequer stating that the CPS had an "inflated costs base". Are you able to enlighten us about the two conflicting and contradictory opinions about the CPS’s finances?
Keir Starmer: Can I try to sweep them together in one answer in this way, and it requires us just to stand back? The CPS was created in 1986. In the early years it was under-resourced and underfunded. It established itself in that early period from 1986 through to about 1998 to 2000. That was stage one. This was the first time you had a national prosecuting service. It inevitably took some pulling together. It was very disparate before that. So stage one is from 1986 to the early 2000s.
In about 2002 to 2003 the next stage of development for the CPS began. That is when the functions were enlarged and the CPS became responsible for statutory charging. It became the gatekeeper for the Criminal Justice System in a very meaningful sense. It gained responsibility for victims and witnesses in a way which had not been the case before. Witness Care Units were set up and in-house advocacy began. So there were some really important changes in 2003.
The next stage of development, if you like, was the 2003 to about 2010 stage when, as it were, the modern prosecuting service was established. In the course of that, money was expended setting up those changes. Training was needed and systems had to be set up. Money was put into the CPS to ensure that that happened. To take an example, on statutory charging, a scheme had to be set up; people had to be trained; we had to come to agreements with ACPO as to how that was going to happen; and we rolled out face-to-face charging, which then subsequently changed to modernising charging. So there was that stage when there was more money put into the CPS for all those purposes.
That stage overlapped with a very busy period for criminal justice. The amount of criminal justice legislation and the increased number of offences is well known, which meant that, certainly, for example, on the policy side, we had to have a very significant policy resource available to us to deal with the legislation, etc. That was the position until 2010. From 2010 onwards we enter the next stage, which is the CPS delivering a consistently high service for less money. That is the stage of the journey that we are just beginning. It is a different stage.
In terms of "stretched", these are not my words and we don’t accept that we were "stretched", but you have to recognise that, behind that, 2003 to 2010 was a phase of the development of the CPS which I don’t think can now be compared with the phase that we are just entering. Some of the things that we had to deal with in that time such as setting up these systems, etc., are things we don’t need to deal with going forward.
So far as the "inflated costs base" is concerned, I don’t understand that term. Perhaps just by looking at the figures, from 2007 to 2010 we have saved 7% in that period notwithstanding pay and price increases. Therefore the last three years have been a period of considerable consolidation and saving in any event. Whilst it is true to say that in that period the number of magistrates’ court cases has fallen by 12%, the number of Crown Court cases has gone up by 9%, and of course it is the Crown Court cases that are significantly more expensive than the magistrates’ court cases.
We have looked at this in terms of the important question, which is negotiating the next five to seven years, and done it by looking at the context of stage one and stage two of the CPS’s history.
Q5 Chair: Did you ask the Treasury what the Chancellor meant by you having an "inflated costs base"?
Keir Starmer: That formed no part of our discussions with the Treasury. Peter?
Peter Lewis: We asked, of course, but I just think it was one of those comments that was slipped in. Clearly we have to reduce our costs base and we made clear in our discussions with the Treasury throughout that that was the task ahead of us in the way that the Director has described.
Q6 Claire Perry: Can I press a little more on the costs issue? To whom do you benchmark yourselves when you are considering whether or not you are offering value for money, given the increased workload you are dealing with?
Peter Lewis: We don’t have another comparator within the UK.
Q7 Claire Perry: Do you look at other departments in terms of total cost per staff employed and things like that?
Peter Lewis: Yes. We look at Whitehall benchmarks certainly for all our corporate functions to make sure that they are as lean as they can be, so we do have comparators for finance, HR in particular, and in IT again we looked particularly at renewing our contract. Because we are effectively the biggest prosecutor, we don’t have a natural benchmark of those costs.
Q8 Chair: Can we look forward for a moment and establish whether you think you will be able to carry out your statutory duties to the full in the regime of costs and cuts that the Government is having to introduce?
Keir Starmer: Yes. Can I take the first part of that? We have a budget reduction of 25% by 2014-15. The challenge is obviously reducing our expenditure and delivering the service that we have to deliver to the standard we have to deliver it. Can I answer in this way? First, we saw this coming. We didn’t know the extent of the reduction, but we knew that our budget was going to be significantly reduced. Therefore we have already taken a number of important steps. Can I just outline them for the Committee so that you know what they are?
First, we significantly reduced and will continue to reduce headquarters. The Chief Executive is leading on that. We have renegotiated our IT contract with a 20% saving on that. We have had a recruitment freeze since November 2009, including ending fixed-term contracts and agency staff. We have relocated from Ludgate Hill to Rose Court, which has saved us money for our headquarters. We have devised a new estate strategy and a new procurement strategy. We have done a lot to put ourselves in the best position we could be in for the Spending Review.
In addition to that, of course, we have merged with the Revenue and Customs Prosecutions Office. Therefore the two organisations have come together and that has driven considerable savings of about £14 million, so important steps have been taken to date.
What are we going to do going forward to make sure that we are able to deliver the service we need to deliver? There are a number of steps. It is inevitable that there will be a reduction in the number of staff and I will come back to that in a moment, if I may. We also inevitably have to save on the goods and services and accommodation. That is a strategy we have in place. Prosecution costs are about £154 million year-on-year for the CPS. Infrastructure is about £106 million.
We then need to work on improving CPS process, performance and organisational structures, and we need to deal with criminal justice changes. Can I just pick up on two or three of those which are really important? So far as the staff reductions are concerned, the approach we have taken is to reduce using natural leaving, looking at our rates year-on-year, and negotiate a voluntary exit scheme with our unions, the principles of which we are negotiating with the unions. We are committed, in so far as it is at all possible, to avoid compulsory redundancies. That is the general approach we are taking to staff reductions.
Internally, the most important thing is how we make our structures and processes more efficient going forward. Here we have an advantage. Some years ago, when it was suggested that the basic police units would move from the 42 to some other number, i.e. merger, we mocked up for the prosecution service what that would look like for us because we have always had a correlation between our basic unit and police areas. Although the merger for police areas was obviously abandoned some years ago, we continued. We have a group structure now. Our 42 areas are organised into 13 groups. That gives us a regional hub around which we can now work and of which we can take advantage going forward.
An example of the sort of thing I am talking about is charging. We used to do charging face-to-face in each of the 42 areas for each police force. What we have now done is to modernise that process to do it on a group basis and to have a telephone and IT system that gives real-time charging. It is that organisational change that we are developing.
Q9 Claire Perry: Can I just interrupt for a second? You are presenting obviously a lot of going-forward, important issues, but this is a big change, if you like, in the thinking and the challenge for the organisation, as I think you said yourself, Mr Starmer, with the shift to now having to consolidate what you have and manage it more effectively. One of the concerns we have-
Chair: I think we ought to allow the Director to complete that description of the measures that he has put in place, and then we will question him.
Claire Perry: Okay.
Keir Starmer: Yes, if I may. The final part I wanted to come back to was that we’ve been clear all along that savings of 25% cannot be achieved from within the CPS alone. What we need to do, therefore, is to work with others to change the way criminal justice is administered and to deal with some of the issues in the magistrates’ court and the Crown court, many of which have been there for a long time but all of which now have to be fundamentally reformed. We are working with others on that. In due course no doubt, either as a result of questioning or at some other point, I am very happy to elaborate on what the key issues across criminal justice are that we think need to be changed.
Chair: I have a string of people who want to ask supplementaries. I will give them an opportunity to do one each. Claire Perry?
Q10 Claire Perry: Who is going to be managing this financial project going forward? I think many of us would challenge that the task for that person is in fact to deliver about a 7% real reduction in what the Chancellor and the Treasury have called an "inflated costs base", which is not such a drastic transformation as many private sector organisations around the country would recognise. Many of us would challenge the suggestion that the CPS can’t find those savings doing it on its own by reconsidering some of the grade and salary inflation that has gone on within your working business model and by potentially moving your headquarters out of London entirely to a far cheaper location somewhere else in the UK. I think we would like to press hard on this notion that we need a drastic re-engineering of the criminal justice system in order for you to achieve relatively reasonable cost-savings targets. Perhaps that would be a question for Mr Lewis.
Keir Starmer: Can I just say two things in swift response? First, in fact, over the last three years, we have been consolidating and saving anyway so this is not the beginning of the process. Secondly, we have adopted an approach-and I hope this is the right approach-of saying there is nothing we will not hold up to the light and ask ourselves the question, "Can we do it differently? Can we do it better?" You are quite right: there are assumptions that are made in organisations that if you are not careful are working assumptions that are carried forward. We have, we hope, sat right back and looked at every aspect of the business and said, "Let’s hold it up to the light. Can we do this differently? Can we do it better?" That is the process we’ve started on and we are going through that. But at the end of the day we don’t control the volume of work that comes into us, and lots of organisations can control that. We don’t have major projects from which we can stand down and there are basic requirements of prosecuting cases in the magistrates’ court and Crown court which we are not in control of and we have to work on with others.
Q11 Claire Perry: Wouldn’t taxpayers expect you to be doing that on a continuous basis rather than now? Wouldn’t that be part of your business model since inception-that you are constantly scrutinising the way you spend other people’s money?
Keir Starmer: Yes, I accept that; and we have been. Peter?
Peter Lewis: Yes. Our Department expenditure limit in 2007-08 was £675 million. This year it will be £629 million. So we have been embarking upon a steady process of costs reduction over that period of time and we will continue that obviously over the period of the Spending Review.
On the key areas of our expenditure that are directly within our control, we think we’ve got strong plans that will actually make a difference and reduce those costs. For example, on our general procurement we think we can make significant changes. We have already talked about renegotiating our IT contract. We can save more on our accommodation. We have already located most of our corporate business centres outside of London. We have done that over the last four years. We will shrink our core HQ function to about half its present size. We have already taken out 25% of it in the last 12 months. We are already looking at outsourcing with other departments to see if we can get our corporate functions done even cheaper. We also have a major programme to exploit what we can through what we call "the electronic case file". We believe there are significant opportunities to make savings there, both with what we can do internally but also with the co-operation of our colleagues, which we believe we will get, to make the service of electronic evidence the norm in the CJS, which we think can save even more money. We have a programme on which I will be leading on cost reduction that will continue the programme that we started in 2007-08.
Can I just come back to some of the costs in the system that we will have to address? Most of our spend is on front-line prosecuting and on the amount we pay to witnesses and counsel. We have to have a programme that tackles that spend. For example, our costs for dealing with a guilty plea in the magistrates’ court-these are just the CPS costs-are about £185 per case. We want to reduce those costs as much as we can. If that same case ends up as a guilty plea in the Crown court, our costs are about £1,500.
Chair: That is an issue we are going to come to shortly. I want to turn to Elizabeth Truss because we are entering an area on which we had asked her to lead, and then I will take some further supplementaries afterwards.
Q12 Elizabeth Truss: I am very interested in what you mentioned about working with the other elements of the criminal justice system and how you see the process. What should the ideal process in the criminal justice system look like and how are we going to get there in terms of working more closely with the other Departments? I am also interested to understand the split-out of the Home Office and the Ministry of Justice. Do you think that has generated extra costs in this system and where has it generated costs? Is that at a national level or more of a local level?
Keir Starmer: Again, if it is helpful, I will take a first pass at this and then Peter can fill in any further detail. Looking at criminal justice, I think it is time to stand back. 75% of cases are guilty pleas. That has been rising over the years, but 75% are guilty pleas. The system is set up as a trial system. Everything is prepared for trial. The rules and the processes are all about trial. What we haven’t done is stand back and say, "What is actually happening to three out of four cases that enter this system?" I don’t see those figures changing in terms of the guilty pleas.
What we think ought to happen then is that we ought to aim for the speediest fair disposal of guilty pleas. We make no bones about this. We think it should be, if at all possible, one hearing before the court to deal with the guilty plea and get it disposed of. There will be some cases where more is necessary, but the vast majority should be dealt with much more swiftly and without preparing by default as if it is trial until the point at which it is clear it is a guilty plea.
That requires us to be proactive. It requires us to assist the court by identifying which cases we think are going to be guilty pleas. It requires the court to have some sort of early guilty plea scheme in place so that all the cases that are going to be guilty pleas can be channelled into that at the first opportunity. That scheme was first set up in Liverpool, where there has been an early guilty plea scheme running for some time. Working with our prosecutors, the court does identify the cases that go into that early guilty plea list and they can be disposed of very swiftly. It requires us to do more work out of court, because if you are going to have one hearing you have to make sure all the reports are there at the right time and that the parties have spoken to each other before they get to court, etc. That is part of the change that we need to make as we go forward. So, cases should be dealt with at the appropriate level and disposed of swiftly if they are guilty pleas.
Where they are trials, we need a full and fair trial of all the issues. What that requires is strong case management by the courts so that when a case is going to go forward as a trial the court identifies what the real issues are between the parties so that we can focus on those and have them resolved, as they have to be resolved, by either the magistrates’ court or the Crown court, but strong case management so that when it gets to court the issues that have to be resolved are resolved.
The answer for us-and there is a transformation thing here because the figures are changing-is to step back and look again at what this is all designed to achieve. Working with, for example, the Criminal Procedure Rule Committee, are there things that have happened over the years that have somehow inhibited that? One of the things that the Committee has been looking at is whether some of the applications, for example bad character applications, need to be made before we know it is going to be a trial. These days there is much more that the prosecutor has to do than there ever was 10 years ago, such as bad character, hearsay and special measures applications. They are important, timely and they take a lot of resource. What we want to do is to make sure that the whole system is geared up to those obligations being triggered only when we know it is going to be a trial, so that we can put the resource where we need it-into the trials-and deal much more swiftly with those cases which are pleas. If we could achieve that it would make a huge difference.
Q13 Elizabeth Truss: It strikes me that the approach that is being taken is very process-orientated. It is about reducing the costs in a process, making things more automated and so on. One of the concerns I have is about accountability. Particularly when the Home Office is moving to a system of elected Police Commissioners, where you are going to have locally accountable police, is there scope for better local accountability for prosecutors, and are we just putting more costs in the system, having this very nationally run process, when the Home Office seems to be going in a different direction? How are you going to ensure proper prosecution accountability? I can see your point about the guilty pleas and that clearly is an issue with the process, but what about due process when that’s not the case?
Keir Starmer: On the issue of accountability, there are clearly established structures for accountability for the CPS and the DPP. I am superintended by the Attorney-General, as you know. The Attorney-General is answerable in Parliament, etc., etc. We have taken really important steps in recent years to make ourselves more accountably by ensuring that where we take important decisions we put our reasoning into the public domain.
Q14 Elizabeth Truss: You are accountable at that national level, whereas the police may be accountable at a more local level. There is potentially a mismatch in accountability there, is there?
Keir Starmer: As far as the local level is concerned, our approach is that it should be a national service delivered locally and that the local element is really important. There has to be engagement and consultation at the local level. Most of the problems of criminal justice can be solved better at the local level than at the national level. So we have to get that balance right. We would not want to inhibit anything that encouraged local resolution of problems. We have been doing it for some time. Community engagement has been a major part of prosecuting for some time. Involving ourselves in Local Criminal Justice Boards has been really important to the CPS, so we are very much in favour of that.
But at the end of the day the role of the prosecutor is independent and the critical decision is whether or not to put someone before a criminal court. On that, I think there should be a national approach so that whether you are prosecuted or not does not vary from county to county but is consistent in that there is a standard. We have the Code-I hope you have been provided with it-which is laid before Parliament. That tells you that if you are going to be put before a criminal court there must be sufficient evidence to provide a realistic prospect of success. I don’t think that is locally negotiable, to be honest. Secondly, it has to be in the public interest and the factors are set out. Again, there would be some local variation in terms of priorities, etc., but I think local consultation and resolution of difficulties but a national approach to who goes before a criminal court is the model that we have and it’s the model we should keep.
Q15 Elizabeth Truss: Can I ask, going back to the cost point, how that compares with the international costs of prosecution? In comparable countries have we looked at where their costs are versus where our costs are, how those differ and vary, and also what kind of reforms other criminal justice systems have been through?
Peter Lewis: We have taken quite a hard look, and will continue to do so, particularly on our big cases, about the experience of the other common law prosecutors. It is more difficult to make a comparison with civil law.
Elizabeth Truss: Yes, I understand that.
Peter Lewis: We are quite interested in the speed at which cases, particularly the large cases, can be brought to trial in some other jurisdictions. Frankly, equally well, we know from particularly the Canadian experience-which we are quite close to and we have looked there-they are experiencing some of the same problems as we do with the large cases. There are issues about the different legal framework in the United States that allows the trial of large cases to take place at a speed that we couldn’t do here, but we are looking closely to see if we can learn lessons from that.
Q16 Elizabeth Truss: What about the cost per case on the volume side?
Peter Lewis: We haven’t done comparisons with the States or with the other common law jurisdictions on those costs, no.
Q17 Elizabeth Truss: Do you think that might be a useful exercise? What concerns me about benchmarking with other Government Departments is that they are not necessarily using the same facilities. If most of the cost is in legal cost, can we look at where that is coming from? Is it the length of trial that we are talking about? It sounds like what you are saying is it is the speed of the cases here rather than any other that is generating that cost.
Keir Starmer: It’s a combination. It’s the number of times that the case has to come before the court before it is disposed of. Everybody has been working in recent years to try and reduce that. It is the preparation of cases for trial when that is unnecessary. I have said several things publicly now about cracked trials.
Chair: We are going to come on to that in just a moment.
Keir Starmer: Just to flag it up, every time a case pleads guilty on the day of trial rather than earlier, it means that we will have prepared it for trial rather than for plea and that a good deal of that work has taken place when it need not necessarily have taken place. Then there are the Very High Cost Cases which take a long time. We recognise that we need to play our part in keeping them within reasonable proportion, which is why at the end of the day the number of people we prosecute and the scope of the charges will have an impact on the length of the trial. We recognise that, hence the Case Management Panels. We now have a much closer scrutiny of these cases. We can’t deal with everything ourselves but I think we can at least make sure that the prosecution side is as tight as it possibly can be.
Q18 Elizabeth Truss: Can I ask one more question about the National Crime Agency and the implications that will have for the CPS? Have you started discussions yet about how that is going to work?
Keir Starmer: We have been involved in consultation, as you would expect. The final model will be whatever the final model is, but assuming it is as reasonably anticipated we don’t think that will cause any great difficulty so far as we, the CPS, is concerned because we are now used to having our geographical units out there around the country, each of the 42 areas, coupled with central casework divisions. One of our central casework divisions is, of course, the Organised Crime Division which deals directly, day-by-day, week-by-week, with SOCA. We have established relationships where, as it were, there is a national investigating agency feeding into a national prosecution division. We don’t foresee particular problems for us as prosecutors.
Chair: I am going to call on Elfyn Llwyd and then I will take a number of supplementary questions which I think people have.
Q19 Mr Llwyd: You will be aware of the recent audit by the Inspectorate of the CPS in October. That audit, and for the record I will mention it, looked at 145 case files. 119 were discharged committals. The reasons were: the CPS not ready and adjournment refused, 22; forensic evidence missing, 11; legal element missing, 32; and so on. It’s not unfair, I think, to conclude that nearly one-half of those were due to some shortcomings within the CPS. I am concerned about that because you mentioned, quite fairly, that there will have to be a reduction in staff. Isn’t this going to exacerbate that problem?
Keir Starmer: We have looked very carefully at that report, as you would expect, and in particular at the reasons for the discharged committals and the recommendations. The reasons are as you identify. We have done a number of things. The first is really important but is in fact not about discharged committals. That is that we’ve introduced into the CPS core quality standards. That is the second of the two documents that I’ve asked you to have. That sets out in a simple document what it is we expect of all our prosecutors and what they need to do to ensure a successful prosecution. We now measure that in a way we’ve never measured it before, so we have a monitoring scheme in place where we analyse files month on month, looking at what has happened on file. They are randomly selected.
Q20 Mr Llwyd: When did that start?
Keir Starmer: One of the first things I did as DPP was to go to each of our 42 areas to meet as many staff as possible to try and identify what the common problems were, where we were doing well and where we weren’t doing well. Peter and I went on about 62 visits to our staff and met something like 2,500 of our staff. We had a very good set. At the end of that exercise our view was that the changes that had taken place in the CPS recently were very much for the better and that the CPS is capable of an excellent service and capable of a good service but we don’t deliver it consistently. You can see that in the discharged committal rate. What we therefore needed was to be much clearer in simple terms on what quality we expected from our prosecutors, and we needed to measure it. Instead of having targets, what I wanted was something that involved going and looking at the file, looking at the cases on a random basis across each of the areas across each of the units to assess the quality of what was going on, day in, day out. We have now set up that scheme. It came on board in March 2010 and we now have two or three quarters’ worth of analysis. When I say "analysis", for each file we look at about 30 different elements, so there are literally thousands of examples of our work that we have now analysed and looked at in a sort of quality control that we’ve never ever done before. That is telling us a lot about the quality. It is sending a very clear message and it is allowing us to pick up on some of these difficulties.
Some of the issues on discharged committal are not dissimilar to the problems that we’ve had in other areas of our work, but there is one thing about committals that I think it is important to say. In the last few years we’ve looked at areas where we thought we’ve had particular problems and we’ve tried to solve them.
To be perfectly honest with the Committee, the abolition of committals has been on the statute books for quite a long time and probably now, having had this report, the truth is we didn’t focus on committals in the way we should have done because we were anticipating that the legislation would come into force and in fact they would be abolished in accordance with the overall scheme. So it is sort of "hands up" to that. As we focused on what we thought we needed to improve on, we hadn’t focused on committals, in truth because we thought they wouldn’t be with us for very much longer in the form they are. They are and we have learnt the lesson from the Inspectorate. We’ve got the recommendations and we will take them forward. So there is an overall piece on quality. There is, as it were, an admission in relation to committals. Perhaps we should simply have adopted the approach that unless and until the legislation finally comes into force we’ve simply got to keep pressing on all fronts.
Q21 Mr Llwyd: But I am afraid it is broader than that, isn’t it, because the rate of abandoned prosecutions, both in the Crown court and the magistrates’ court, has not changed since 2005?
Keir Starmer: There are some important figures that I think the Committee ought to have. As I said earlier, the major changes for the CPS came in about 2003 with the commitment to victims and witnesses, with statutory charging and the beginning of advocacy. The figures between that sort of period and now are really startling and we think tell a good story so far as the CPS is concerned. The discontinuance rate in the magistrates’ court in 2003 was 36%. It is now 16%. That is a radical reduction. The guilty plea rate in the magistrates’ court was 40%. It is now 71%. So, back in 2003, 60% of cases were trials. Now, 70% are guilty pleas. The attrition rate of fought cases was 40%. It is now 22%. In the Crown court the figures are moving in the same direction. They are slightly less stark: a 15% discontinuance rate in the Crown court is now 12.5%. The guilty plea rate has gone up from 61% to 72% and the attrition rate of 26% has reduced to 20%.
In fact, if you stand back and look at the figures, particularly in the magistrates’ court, there has been real improvement across the figures. A discontinuance rate that has gone down that much after the introduction of those changes is marked and is significant. The guilty plea rate that has changed that much is marked and is significant, and makes a real difference. If you are fighting 60% of your cases, that is one thing; that was the 2003 position. If you are fighting less than 30% of your cases, that has major ramifications for the efficient dispatch of criminal cases.
I accept that we need to constantly improve and that quality needs to be driven into the organisation in the way that I have described. We are absolutely committed to that. We would have done that, Spending Review or otherwise. But also, to be fair, particularly to those that have sat in my chair before me, hard work has gone in and the figures are markedly improved.
Q22 Mr Llwyd: I don’t want to split hairs, but I mentioned 2005 and your figures are 2003. But in any event I accept that there has been an improvement. You mentioned earlier on that you are mindful of the recommendations of the reports and that you will be implementing all the recommendations. There are six main recommendations. Are they all now implemented or are you working towards that?
Keir Starmer: We are working towards implementing all six of them.
Peter Lewis: Yes.
Q23 Mr Llwyd: Which, in particular, have you initiated and which haven’t you?
Peter Lewis: We are very much influenced by what the Inspectorate said about the best practice. They found, looking across the country, that there was a good practice regime operating in Liverpool. Getting that regime across the country seems to us to be the fundamental issue which will deal with most of the issues. That is what our focus has been on.
Q24 Mr Llwyd: There would appear to be a problem in that there are, I wouldn’t say widespread, but fairly common, failures by the police to provide fully evidenced files in time for a trial, and sometimes not at all. You have mentioned the abandoned cases. How is this being tackled and what can the CPS do to avoid this potentially damaging and devastating problem?
Peter Lewis: We have been working very closely with the police to make sure that we do focus on these cases. In part of the discussions the police have had with us they have said, "If you can give us more guidance about those cases that are genuine contests where we have to produce all the evidence that is required so that we can concentrate on those, that would be a great help to us." Part of the work that we’ve been doing on these early guilty plea courts in the Crown court is to identify the cases that will be straightforward pleas and say to the police on those cases, "You do not need to produce an entire full file in the way you would do for a contest. Produce what is necessary and then for the real trials produce the full file with all the evidence." We think that using that scheme so that we can focus the police efforts on when it is really required is part of the answer to this problem.
Q25 Chair: In the Scottish system, the Procurator Fiscal is directing police inquiries and can therefore make it absolutely clear from a relatively early stage that he gets the evidence he needs and not the evidence that he or she cannot use. Ought we to move closer to that?
Keir Starmer: I don’t think that’s necessary. It is tempting to compare the two. The truth is that where we work well with the police that’s not necessary because early consultation with the police is key to successful prosecutions. We are much better at that than we used to be. We rarely, in truth, run into a situation where we are advising the police that this may be good evidentially, etc., and they are not taking that advice. It is about getting the discussion early enough and in the right place. There are very few cases where a power of direction is really the answer. The real answer is making sure that there is that early consultation in as many cases as humanly possible. The relations with the police on the ground are good where the conversations are happening. The difficulties are normally about communications. Rarely, if ever, are we battling because we want something done and they’re not prepared to do it. It is actually communication that is the critical thing here. For the moment we don’t think that a power of direction adds to a good professional working relationship upstream of the police.
Q26 Chair: Without getting into the details of a particular case, where you have, for example, undercover police operations, do you give guidance to police forces on how they should conduct such operations so as not to harm the prospect of admissible evidence being used in a trial?
Keir Starmer: Can I caveat any answer? As you know, there is an independent review of police conduct in relation to the Nottingham case going on and I wouldn’t want to say anything that would cut across that. We are of course looking at the first of the two trials that were heard in Nottingham and we are in the middle of that process. I have to be very careful what I say. Broadly speaking, an undercover operation is for the police to run according to the legal framework that everybody is familiar with. It does not involve oversight by the CPS.
Q27 Chair: But if the operation is intended at some point to lead to a trial, there comes a stage when proper account is going to have to be taken of the risk to the admissibility of evidence of, for example, somebody beginning to resemble an agent provocateur. Therefore there must be some kind of guidance that police forces work from, isn’t there?
Keir Starmer: It is no part of the oversight mechanism that the CPS has any, as it were, legal rights or duties. Inevitably in some cases, where there is early consultation, there may be exchanges about what may or may not be useful as admissible evidence, but that is a working arrangement on a case-by-case basis; it is not part of the legal architecture.
Q28 Chair: So there is no piece of paper or little handbook which police forces have which constitute your advice on how to conduct themselves in such operations?
Peter Lewis: ACPO do have guidance about how to conduct these operations. There is a difference, in our experience, between when we get asked about detailed involvement in particular cases, such as undercover operations that are targeted at particular individuals. The Serious Organised Crime Agency take our advice on how to operate those cases. It is different if there is long-term undercover police for intelligence purposes. The police do not take our advice on those cases.
Chair: We will return to money, which was the preoccupation of the earlier part, because a number of colleagues had supplementaries they wanted to ask, including Mr Turner.
Q29 Karl Turner: Thank you, Sir Alan. Can I just briefly ask you about the first appearance disposals, Mr Starmer? You have spoken about this and what you say seems to me very optimistic, to say the least. I don’t know when you last spent any time in the magistrates’ court, but my recent experience in practice as a junior member of my chambers was very much based in the magistrates’ court. Cases are prosecuted by associate prosecutors. They need to get advice on virtually everything, in my experience. We know that the probation budget is being severely cut, as well as CPS staff having to go. I think 22% of the CPS staff at the moment are going to be made redundant, albeit by natural resources. The idea of cases being dealt with on the very first appearance seems, to me, massively optimistic. Would you agree with that?
Keir Starmer: No. Everybody said that about the Crown court. "You will never get an early guilty plea scheme that will work" was said. We tried it in Liverpool and it worked. It worked because people went in with the right attitude. They went in prepared to adjust the model month on month where they found problems with it and they worked really hard at it in the 18 months or so that that scheme has been up and running. That was about a mindset. It was about clarity about the outcome and a real determination. That needs to be replicated across as many courts as possible. I appreciate that is the Crown court. It is inevitable we would start with the Crown court for the early guilty plea scheme because of the costs implication, but I do not accept that these things are unachievable. I think now is the time to try and deal effectively with some of these problems.
As for the question, "Do you know what’s going on, on the ground?", one of the things in addition to going to visit all of our staff, as I indicated that I have been doing, is that, because people say, "This has happened in court; that has happened in court", I do unannounced court visits all over the country. It is true to say I have mainly done Crown court so far, again for obvious reasons. I go with my principal legal adviser. I don’t tell anyone I am going, so none of my staff know I am going. The only person that knows is the resident judge, who is told the day before, and we ask him or her not to tell the other judges. I go into court. I get a read-out from the resident judge of any issues he has before I start. I then go into the back of the court and I wander from court to court, normally looking at plea and case management hearings, where we will see a lot of our staff and a lot of the knotty issues. I have done about 15 or 16 of these now and watched scores of cases conducted across the country, because I wanted to know what was going on, on the ground, day in, day out, and I wanted to do it in a way which was as near to unplanned as could possibly be.
Q30 Karl Turner: Given that then, Mr Starmer, you will appreciate the points I put to you. Associate prosecutors have very little authority. When were you last in the magistrates’ court watching APs or, as they used to be called, dedicated case workers?
Keir Starmer: I think in about September. I was in West London not so long ago sitting in Court 4 all morning. I understand the point you are making, which is, have we got it right in terms of the referrals that we put in place for some of our staff on the front line, or are we unnecessarily having requirements that are holding things up? This is not easy. First, I take the point. It is something we are looking at. What we have asked for is an analysis across the organisation of all the checks and balances that we have put in place over the years for our staff, to ask ourselves the question, "Do we still need them" or-
Karl Turner: Can I just pause you, Mr Starmer, if you don’t mind?
Keir Starmer: Can I just finish? They are in place for different reasons but we do have to stand back and say, "Have we asked for too much?" If someone is able to conduct a case, shouldn’t we trust their analysis on disclosure or something as we go along? We are asking those hard questions.
There is a balance to be drawn here between empowering the front line, and we are very keen to do that. No doubt we will change the rules on referral and cross-checking; we will do. We want to empower the front line. We want to treat our professionals as professionals. Equally, we have to make sure there is the consistency and high standards, because if you empower the front line you have to live with the mistakes that are made on the front line. Sometimes those mistakes have reputational implications. We need to get that balance right. I’m not sure we’ve got it right so I completely take that point. That is why we’re looking at it.
Q31 Karl Turner: The point I want to make is this. I think what you say about first appearance disposals is welcomed by everybody, certainly under the fixed fee regime. Defence solicitors would rub their hands at the possibility of having a case dealt with on the first appearance in the magistrates’ court. There is no question about that for me. But my concern is that, by implication, defence solicitors seem to take the rap for cases going on. It doesn’t seem right to me. From my own experience-I’ve been in the magistrates’ court an awful lot-it tends to be the opposite, actually: CPS lawyers not being ready; the people who are prosecuting cases not being authorised to accept pleas and negotiate on the particular case and so on. That seems to be where the problem is. I think the resources of the CPS, if I may say so, tend to be used badly in those instances. Would you not agree with that?
Keir Starmer: No, I don’t agree with that. I think I’ve dealt with the referral point. That is a piece of work we are currently engaged on. There is no part of what I’m saying which is laying the blame at anybody else’s door for any inefficiency in criminal justice. I am not suggesting for a moment that it is all the fault of the defence, the judiciary and the courts and it is no fault of ours. I am not suggesting that for a moment. What I am suggesting is that there are issues here that have to be resolved and we have to pull together to resolve them.
To take the example of whether or not it is possible to dispose of cases in the magistrates’ court first time round, we are having very good discussions with the Law Society and with defence practitioners to identify what the problems are. One of the problems is that we don’t have an electronic means of getting documents to them. This is a problem. What it means is that the court hearing becomes the beginning of the process or the dialogue between defence and prosecution instead of the end of the dialogue. The court is being used not as a resolver of the issue or the only issues that can’t be resolved between the parties, but as a starting point.
How do we resolve that? We have been having discussions with the Law Society with a view to seeing whether, through secure email, etc., there is a way in which we can make sure that everything we need to deliver to them is delivered before the hearing so that they are as ready as they can be and we can do real business on the day of the hearing. That is something that is a very good, open discussion. Everybody accepts there are things that we and they could do better. I am not pointing the finger because all that has happened over the years is that everybody has pointed the finger at somebody else. There are things here that we are doing very positively to move forward, but the court needs to be the final disposer of the case and not the starting point of the process. That requires change: change we are working with, to achieve.
Q32 Ben Gummer: Mr Starmer, your aspiration is admirable and everything you are saying makes perfect sense, but to pick up on my colleague’s point-and I come to this as a layman-any lay observer of a court will see moments of near chaos on a regular basis. It seems that the inefficiencies with which you are well aware haven’t been attacked with any consistent approach across the country. You seem aware of that to a certain extent. Surely this is such a complex issue that it requires very determined leadership. I wondered whether I could tempt you to say whether you are getting co-operation from all of the agencies you require to be able to bring about the revolution you want to see, and whether it is possible to do it through a collaborative approach, or whether someone needs to take this in a far more determined way than the rather collegiate approach that you have suggested.
Keir Starmer: Most of the problems that I have identified as needing to be resolved now are problems which have been with us for a very long time. I think that because, historically, we have all concentrated on our own patch and been very defensive of criticism we have not worked together to resolve them and we have walked around problems. Some things have been done which are very good. CJSSS in the magistrates’ court is an example of real improvement in the magistrates’ court. I have touched on the early guilty plea scheme. What we need to do now is to identify half a dozen or so key things that have to change, and then we all need to work together to change them.
Do we have the clarity about what that is? That is the first thing. I think the answer to that is "yes". We are working on that; we are consulting on that. We are very clear in our own minds what needs to happen. We are working with our colleagues. Are we meeting with resistance? No, we are not actually. That may well be because everybody is in the same boat just at the moment. Everybody’s budget is reducing and everybody is sharply focused on what we can do to bring about improvements. We have an opportunity here that perhaps didn’t present in the same way before. We are working with our colleagues in other agencies to make those changes.
Can any one individual, as it were, lead the charge and make the change? No, they can’t because this absolutely needs the police to work better with us. It requires us to work better with the courts and with defence advocates, etc., etc. No one agency can do it on their own, but we need collective leadership. This next five to seven years is a real challenge of leadership, because in the next five to seven years we need to do what we have not done successfully for 15 or 20 years. There is no question about that. It is not about one person taking the lead; it is about the leaders across the agencies doing it. But we are very clear about what needs to happen.
Q33 Mr Buckland: It comes to this, doesn’t it, Mr Starmer? You are saying that in the Crown court the most important hearing should be the plea and case management hearing. Everybody should be working towards that date in order to have identified the issues, and in particular with regard to your staff and people instructed on behalf of the CPS they are in a position to make decisions, for example as to acceptability of pleas. Why doesn’t that happen often enough when it comes to the PCMH?
Keir Starmer: For a variety of reasons. We need to be more proactive. I accept that. We can do a lot more. I think the plea and case management hearing is critical. We need to be much more proactive. What we are saying to our prosecutors is, "You need to go into court; you need to be able to say to the court, ‘These are the issues as we understand them between us and the defence. We’ve already had a conversation with the defence. We are not starting that conversation now. This is how we invite the court to resolve these issues. It is said that the following witnesses are needed. We certainly accept that A, B and C are needed. We query D and E.’" We, in fact, help the court manage the case and we have got to do more of that. Therefore we need to work with our teams to make sure that they are up to speed. We need to make sure our case progression is better.
The last two years for the CPS has been about driving in quality and consistency, not accepting that we can do well when we really apply our mind and do excellently as we do with really big cases, etc., but to make sure that we do so day in and day out, because that is where the money is used up. That is what we are working on, but we need to be more proactive.
Your preamble was that the plea and case management hearing is the most important. That is only for cases going to trial. The thing about the Liverpool scheme is that the early guilty plea list is dealt with before the plea and case management hearing, the purpose being that if you can dispose of a case as a guilty plea you don’t need to get to that stage. It is a really important hearing and everything I’ve said is about that hearing, but the more we can deal with early guilty pleas the better. It will help us enormously. If we are to use our resources sensibly going forward, we have to concentrate them on the cases where there are those management issues. We have to do that. One way that we can do that with fewer staff and fewer resources is to make sure that we are not doing all that work on cases which in fact are going to be guilty pleas. That is why I am very interested in the early guilty plea scheme. If a significant proportion of our cases can be dealt with without preparing them for trial because that’s unnecessary, we can use what we have to make sure we are being more proactive, but I certainly accept the point that we have responsibility to be more proactive at the management stage of the case.
Q34 Mr Buckland: Just briefly on detail, I was interested to hear what you said about hearsay written applications and bad character applications. It has been very process driven, hasn’t it, over the last few years and the courts have focused upon the need for those documents to be in the court’s possession? Would you agree with me that in fact we’ve gone overboard when it comes to the form filling?
Keir Starmer: It is too complicated.
Q35 Mr Buckland: It would be far better for resources to be used in a different way so that only if there was to be a trial would those forms need to be filled in.
Keir Starmer: I couldn’t agree more. It has become far too complicated and sometimes the requirement to make the application comes before we know it is a not guilty plea.
Special measures is an interesting example. Even where a case is pretty well guaranteed to have special measures, formally, all the forms have to be filled in, supported by witness statements. Some courts take the view that, even if it is a perfectly good application, unless each of the forms is filled in, in the proper way, then they won’t grant the application. It is a series of trip wires. Add to that this problem that most victims and witnesses are rather hoping that when the case enters the court system they won’t have to make an appearance. They are certainly not thinking on the basis of, "What would I want if I did make an appearance?" Therefore, when asked, for example, "Do you want special measures?", they may give one answer at the beginning of the process that is different to the answer that they give with a month to go, when they go and familiarise themselves with the court and appreciate what it is they may in fact be doing in four weeks’ time. It is not only that the forms are rather complicated and process driven, and actually too complicated, but the timing can actually put in place trip wires. Human nature is such that you will only really focus on what you think you need as a witness by way of support when you genuinely think, "I’m actually going in there next week or the week after." That is when people, in the main-I am generalising of course-really focus on, "What is it I’d want if I was to go to court next week?"
Q36 Mr Buckland: Because they have to be filled in even in automatic cases, don’t they, where a child automatically gets the benefit of special measures? I beg the question: why do we need-
Chair: I don’t think we have a disagreement here. I think there is a ready acceptance-
Yasmin Qureshi: That is the law, isn’t it, unfortunately.
Keir Starmer: No, no, there is nothing we can do.
Mr Buckland: It is the CPR.
Keir Starmer: One of our major themes is simplify, simplify, simplify. We need to simplify our own processes. That is what core quality standard is about. Make it absolutely clear what a core prosecution is about. We would say the same for criminal justice. It has become overcomplicated.
Q37 Chris Evans: Mr Starmer, you spoke quite glowingly of the statutory charging scheme. What, in your opinion now, with the hindsight of time are the strengths and weaknesses of the scheme?
Keir Starmer: Statutory charging obviously started in 2003. Broadly speaking, we took the more complicated cases and the more minor cases were retained by the police. The split was roughly two-thirds to one-third. When we started statutory charging and at every stage since then, we’ve worked with ACPO. There is nothing we’ve ever done that has been out of step or not agreed with ACPO. At the beginning of the process it was agreed that the sensible way to do statutory charging was face-to-face, usually with a session in the police station where a prosecutor would be there and the police officer would come with a file. The prosecutor would go through and give a decision one way or the other. It was quickly recognised that we needed an overnight scheme because we needed something that ran from 5 pm through to 9 am. We put CPS Direct in place, which is a telephone advice service that has been in place for some considerable period.
That ran for some time. There were issues on both sides between us and the police. The police, broadly speaking, were saying "It is taking far too long to get a decision and sometimes we are waiting at the police station because a prosecutor has a busy set of cases and we don’t know when they’re going to get to us", and us saying to the police, "We would expect a better built file and then we could take a decision."
One of the important things we did in the last two years was to say, "Instead of arguing who is right about this, let’s accept that each of us has a point and see what we can do to transform the service." What we therefore did was to look at whether we could help the police with the access point. We conceived of modernising charging. For volume cases we now have 24/7 telephone advice. If you are a police officer and you want a decision on charging in an ordinary volume case, you can pick up the phone and get a reply and an answer. Most of the time you can now get that within about an hour or so for volume cases. We have obviously retained face-to-face contact-a rape or a murder, etc., you wouldn’t expect to be done over the phone, and that’s done face-to-face.
A lot of the issues that were around a couple of years ago have been solved now. Most Chief Constables that Peter and I have spoken to have spoken in glowing terms of modernising charging because it has given the police more of what they wanted, which was an ability to get a charging decision when they want it with the speed that they want it.
Going forward, we are looking at whether the balance is right between the cases that we charge and that the police charge. Again, there have been some very useful pilots and we are working with ACPO on this. The benefits are a huge reduction in the discontinuance rate in the magistrates’ court and much better prosecutions in the difficult cases.
Q38 Chris Evans: I want to pick up on something you said there. You said there is 24/7 advice available to the police. You said earlier on there is going to be a budget reduction of 25% and you have seen this coming. How will this impact on statutory charging arrangements?
Keir Starmer: I will ask Peter to come in on this, but with statutory charging we made this change relatively recently. It has allowed us to move from having set lawyers in the police station in each of our areas, which is much more resource-intensive than the system we have now, where we have a team of lawyers working across a group to provide advice, because that means they are deployed all of the time and there is no downtime. They are not moving between police stations, etc., etc. We have already driven quite a lot of savings out through making that change. Obviously we have to look at it again and see whether we can do it in any other way, but that is an example of something we have done in the last couple of years that’s made a real difference. I think it is probably an exemplar. It is the sort of thing we need to do in other areas of our business. Peter, is there anything you can add?
Peter Lewis: The Director mentioned that we had piloted some changes to the system. We will be giving a further 5% of our cases that we charge now back to the police during the course of this year. The police charge about 68% of the cases now; it will be 73%. We think that will make the system simpler but it will also save us some costs.
We are also exploring with the police and the Home Office whether we can look at some other summary-only offences and return those to the police, but we would carefully pilot that first. We believe there is a possibility of getting a better balance, which again will reduce the time we are taking. We are also looking at what we can do to exploit the technology we have just put in place to speed up the time we deliver advice. For example, CPS Direct, our out-of-hours scheme, is regularly taking 44 minutes to give advice to the police, whereas some of our slower schemes are just over an hour-an hour and a minute. If we can bring them all to the speed of CPS Direct, we can again save money. We are confident we can find a way of getting the right balance of statutory charging and reducing the cost of doing it.
Q39 Chris Evans: What is the delay in bringing everything up to the standards of CPS Direct? Is there something you have identified that is the reason for the delay, or is it just simply the complication of the cases?
Peter Lewis: Often cases in the day tend to be the more complicated ones and we have to factor that into account. Also, we have done more about using the technology. Can we get the evidential material straight to people quicker? Again, there is something more we can do on that. We are working with ACPO to see how we can refine it.
Q40 Chris Evans: And the 24/7 advice service is not under threat at all. It is not going to be affected by any cuts.
Peter Lewis: No. It is an essential part of what we promised to the police and, rightly, we wouldn’t be able to seriously deliver that service unless we did it.
Q41 Claire Perry: I wanted to turn to some specific categories of charging decisions and in particular crimes of rape or sexual violence. We had the Stern report. There are obviously a series of new measures, which I believe came into place at the beginning of this month, regarding disclosure and handling of such cases. Yet there does seem to be, whether it is fair or not, a perception that perhaps we are still some way from achieving what we would like to achieve in the handling of particular cases. I wanted to press a little specifically on how many specialist rape prosecutors are currently employed, what do you think will happen to those numbers and what changes do you think need to be made, or is this just a perception problem, in which case how do we communicate better the good work that your team is doing?
Keir Starmer: It’s a combination of many of the points that you have touched on, and perception is one of them. We are clear that we want to provide the best service possible to victims of rape. Therefore we need to ensure that we have best practice everywhere in the CPS. In order to ensure that, over the last two years we have had a CPS/ACPO team go to each of our areas to look at the team that are prosecuting rape and to report on them-reports that Peter and I have spent some time going through-to identify best practice and identify where things are not being done as well as they could. That has been a really useful exercise. Inevitably what it has thrown up is that in area A or B they are doing something that they are not doing in area X and Y, and it is good practice that can be learnt across.
That process has come to an end and we’ve pulled it together. It has generated a real interest and commitment amongst the team. They all knew they were going to have this team come in and look at them, and they have all been very keen to look at the report that’s been written on them. The themes that have come out of the reviews are not rocket science. To get a good rape prosecution off the ground, what do you need? You need a really committed police force. You need early consultation. You need a discussion between the prosecutor and the police officer as early as humanly possible so that if there is a gap in the evidence it can be identified early and dealt with. You need specialist rape prosecutors to deal with the case. Therefore we have a rule that you have to have a specialist rape prosecutor. You need early involvement of counsel, whether it is in-house or at the self-employed Bar, with proper conferences. You need really good communication with the victim. These are the major themes of best practice that we’ve drawn out of those reports.
In order to give this some real momentum, the first thing I did when I joined the CPS was to go and see all the areas to get an assessment of the problems. I am repeating the exercise, so I am going round all of the areas again to see all of our staff again. One of the sessions I have with them is on rape and violence against women and we work through the report for that area. "What did it say about your area? What are the common themes? What have you learnt since the report? What are you doing differently?" There is a lot of work here that is being done.
Baroness Stern identified that the policies we have in place cannot be faulted, that there is a real commitment out there, but the problem, on our side at least, is about consistency. Again, that is something that we are trying to deal with through this best practice.
Going forward, I have already identified the core quality monitoring that we do with dip sampling of files. These are random files, as I explained. For rape and violence against women we have a slightly enhanced version of that. 25% of rape and violence against women cases will be sampled year-on-year so that we have a really good snapshot of this area of our work and we have a real assessment of our performance.
Does that mean that we will get each and every decision right in each and every case? No, it doesn’t, but it means that we will reduce as far as we possibly can any possibility for mistakes and certainly any possibility for gaps that could have been plugged at an earlier stage. We have oversight at many levels of what we are doing on rape and violence against women.
Q42 Claire Perry: Thank you for outlining the process. If you do have specific numbers, how many prosecutors do you currently employ and what is your expectation of changes to those numbers, given your anticipated reduction in staffing, if any?
Keir Starmer: The rape specialists or prosecutors generally?
Claire Perry: The specialist rape prosecutors.
Keir Starmer: The precise number of rape specialists I don’t have off the top of my head. They are organised on an area-by-area basis, so each of the areas has rape specialists. It is certainly a figure I can get for the Committee and send to you in some convenient form.
Q43 Claire Perry: May I just have one final supplementary, Sir Alan, which is a general question picked up by this? It is what the military would call your "teeth to tail ratio". I don’t know what the right term is, but what has happened to the proportion of legally qualified staff or lawyers versus non-legally qualified staff? What has happened to that? Clearly one of the ways to allay concerns is to show that the majority of the staffing reduction is falling on the non-front-line services and you are addressing any issues there with process re-engineering and a relentless focus on efficiency. Do you have those ratios, or could you provide them?
Keir Starmer: We do. We have looked at that, not only Peter and I, at board level within the CPS. We have definitely got the tables; I think they are in the material in front of us. We have asked that very question, which is, looking across the profile of the savings, what is the impact going to be on front-line prosecutions and on others to make sure we’ve got the balance right? The board has signed off on that, but we could certainly provide material. I think we’ve got it somewhere here.
Chair: I am turning to Mr Turner on the issue of victims.
Karl Turner: Yes, I thought I was asking on cracked trials.
Chair: Yes, we thought we might have covered sufficient of that already but by all means.
Q44 Karl Turner: Just very briefly. I think you have probably answered this question in relation to cracked trials, but what positive steps are the CPS taking to reduce trials cracking in the Crown court?
Keir Starmer: The early guilty plea scheme. It is not the only thing, but it is by far the most important because that is what makes a real difference. It has been up and running in Liverpool, as I say. The big question is: can the success that has happened under the scheme in Liverpool be replicated elsewhere, or is it something about the configuration of the court and the determination of the key individuals up there? It is now being tried in Winchester, Reading and Bristol at the moment to see whether that scheme can work in other courts.
Again, this is a problem we have come back to many times. Our view is that that scheme in Liverpool offers the best chance of dealing with this problem, better than all the others. That is why we are pushing that particular one at the moment. I am convinced personally that that is the key. Not only does it get those cases into the early guilty plea scheme and off the books, but it forces us to look at them earlier because we have to help the court to decide whether it is going to be an early guilty plea, and that’s a good thing.
Q45 Chair: I am struck by the fact that Northumbria was the highest, with 68.3% of cases resulting in a change of plea on the day of trial. Is there some particular reason for that?
Keir Starmer: We’ve tried to answer that question. I know the senior judiciary have. There are various theories. I don’t think there is a satisfactory explanation. It does vary across the country, but, frankly, if Liverpool can run an early guilty plea scheme successfully, then I don’t see why it can’t be run in every Crown court in the country.
Q46 Karl Turner: Do you think the relationship between the case worker, i.e. the solicitor preparing the case, and the advocate in court is working properly?
Keir Starmer: Yes. It is something we always need to come to and look at. It is not a particular concern. What is important is that the case is prepared and progressed properly. There was a time when more cases were handled by one individual back at the office. That wasn’t as successful and efficient as it is now made out to be. We have moved to a system where we have what we call the optimum business model, where we have a team of people progressing all the cases that are currently requiring progression. That was put in place because the National Audit Office in 2006 identified a number of inefficiencies with the old one lawyer, one file approach. Where it works well it is really good. What we have to make sure is that it is properly staffed and monitored the whole time. I think the answer to your question is that proper progression and preparation is critical and then a good relationship with the advocate, whoever that is, in court. I don’t think the last stage, the relationship, is a particularly problematic one.
Q47 Chair: Another thing we wanted to ask you was whether you have a problem with the perception in the eyes of many victims that the prosecutor is their representative in court.
Keir Starmer: We are not their representative in court. They are obviously central to everything that we do, but we prosecute on behalf of the public. There is a difficulty in the perception. We are there to prosecute on behalf of the public. Victims and witnesses are much, much more central to what we do, but we are not representing any individual in court.
Q48 Ben Gummer: Can I ask a very quick question on the back of cracked trials and my previous supplementary? Given your insistence of going on with a collegiate approach, do you have any joint targets by which you can achieve the kind of reductions that you want to see?
Keir Starmer: On cracked and ineffective trials?
Ben Gummer: Yes.
Keir Starmer: No.
Peter Lewis: As the Director has explained, this scheme about getting early guilty pleas out was running in Liverpool and we are now testing it in these three other places to see if we can benchmark the performance. Liverpool at the moment, at the end of this year, we think will have dealt with 50% of the committals as early guilty pleas. If we can replicate that elsewhere, then that would put us in a good position to set a benchmark. One of the things we are now looking at, through what we are now testing outside Liverpool, is to see if we can have a model with some numbers.
Q49 Ben Gummer: Do you have any central targets by the time you can roll this out across the country?
Peter Lewis: Yes. One of the things we are hoping to find out from these other places is to have a model which would include some indicative figures for that.
Keir Starmer: We need to get this model right. That is the most important thing. The problem with setting a target of X% cracked or ineffective before you’ve got the model right is that, sometimes with these targets, they can become the driver rather than getting the model right. That has been a problem that has bedevilled us and others over the years. We are very keen to avoid it. It doesn’t mean we’ve not got to act with pace. We have, because of the financial situation we find ourselves in if for no other reason. But let’s get the model right and make it work. Of course we must have timelines in place, but I don’t think a crude percentage will work at this stage.
Q50 Ben Gummer: It is heartening to see how cuts can focus minds to improve services. Can I move on to questions of advocacy? You will be as aware of this as anyone. There is a familiar judicial complaint quietly and anecdotally, and also amongst leading defence counsel, that the quality of prosecution advocacy is often not good and getting worse in many instances. Is this just the moanings of a rather bitter judiciary, or is it representative of some sort of truth?
Keir Starmer: Ever since the CPS started doing much more in-house advocacy there has been a debate as to whether in-house advocates are as good as, better than or worse than external advocates. There are many anecdotes on both sides of the line. What I thought was important was to be absolutely clear about this. Whether we instruct someone or employ someone, we need quality advocates. Advocacy has never been properly quality assured, so the anecdotes are always anecdotes. They have to be because there is nothing objective that has ever been done to test the proposition whether X or Y or the group of X is better than the group of Y. I have said that I am not particularly interested in this dispute. What I want to say is that whoever represents the prosecution in court has to be of the highest possible quality.
Can we do something about that? I have said there is no quality assurance. What can we do about that? What we have done internally is that I have had all of our trial advocates quality assessed. I have had advocacy assessors go to court for the last 12 months carrying out real-time assessments of our advocates. We have had about 1,000 assessments done. Nobody else has ever done this. It has given us, area by area, results from that exercise.
Going forward, the question then is, "If that is what you’re doing, how does it extend across to the self-employed Bar?" My view is that there should be one quality assurance scheme for all advocates: defence, prosecution, in-house, instructed, solicitor or barrister. There shouldn’t be different standards. There should be one standard. We will happily fold our quality assurance scheme into a common scheme as soon as that is agreed by others. Then we can have a meaningful discussion about whether our advocates are better, worse or indifferent. We deliberately had that quality assurance done in-house because I knew this was coming.
One of the reasons I have done unannounced court visits is to test the proposition as to the quality of our advocates. I have seen very good for in-house and instructed. I have seen good in both camps; I’ve seen poor; and I’ve seen very poor. I have seen some very poor advocacy both in-house and at the self-employed Bar. I have a discussion with the resident judge and then with all of the judges in the court when I go on my visits as to a number of issues. One is always advocacy. I think the information I am getting now is changing. Very rarely does a judge now say to me, "All of your advocates are below par." I was in Nottingham Crown court a week ago Monday and a typical profile is, "X or Y are really good of your in-house people. A, B and C are not bad and certainly able to do the job. I wouldn’t want to push them too much further just at the moment, but they will be capable in years to come. I am not so sure about one or two." That is much more of the typical feedback that we get. That would reflect what I think is the position. We need to be clear about those that are really good and can fly, those that we can push on and those where there are problems about quality and we need to work on that with them. I think it is a bit of a sterile debate.
We are, as you probably know, seeking a new model going forward with the Bar. I have been in intense negotiations with the Bar because I think the friction that has been allowed to build up between the CPS and the Bar over recent years, fuelled mainly by in-house advocacy, has not helped anybody. I don’t think it is the right working environment, I don’t think it is fair to our staff and I don’t think it is going to drive up the quality of advocacy.
With the Chairman of the Bar, Nick Green, who has just finished his term of office, I have been in hard negotiations about the model for the future. We are about to complete on that but it is no secret that what I want is a panel approach, where those who want to be instructed by us apply to go on a panel. That is a quality assured panel. That will be a first. You are on there because you are good and you want to be on there. The panel is devised in such a way that if you are on the panel there is a meaningful amount of work that will come your way so that you can build a career if you want to. One of the issues is whether there is enough to sustain them. In a sense I hope that that debate-who has the better advocates-will become the sterile argument of the past and not a part of the future. Relations between us and the Bar about the model going forward are very good at the moment.
Q51 Ben Gummer: That is very encouraging. There has been some work on it by your own Inspector, who said that the predominance of poor advocacy was on the prosecution side in contested trials and not in non-contested trials. Is there a worry for the public therefore that people aren’t being prosecuted with the quality that the public would expect and receiving a better defence, frankly, than the Crown is able to offer in terms of prosecution?
Keir Starmer: Obviously, whenever the Inspectorate draws up a report and makes recommendations we take that really seriously. We have a very good relationship with the Inspectorate and we will always act on the recommendations they make unless we have a discussion with them about it. We certainly wouldn’t ignore anything they told us. We hope that by consolidating our advocates and by having the quality assessments, all of which have happened post the Inspectorate report-the scheme that I have had running for 12 months or so now has all happened after the Inspectorate report-we have a much clearer view of our advocates and are much more able to say where people are on the gradings that we’ve given them. Where the Inspectorate has told us stuff about contested trials and cross-examination, we have worked on that by having master classes, etc., on those issues. We have taken those lessons away about quality and learnt them.
Q52 Ben Gummer: I have one further question, which is on the quality and numbers of people going into the self-employed criminal Bar. Do you share the concerns of many people that now the rates of pay are so low-and I can say this as someone who has no connection with the criminal Bar whatsoever-it is discouraging quality entrants into the criminal Bar, who are increasingly going to the commercial Bar, when otherwise they might have made a choice between the two? Is that a concern that you share?
Keir Starmer: I’m not sure I am in a position to comment on why people are or aren’t going to the criminal Bar as opposed to the commercial Bar and what drivers they have. I think there is quality in there. There are good-quality people coming through that we are able to instruct. I hope that by having a panel this will encourage people. They will know, "If I am good enough to get on that panel, I can really progress as a criminal lawyer", and the good will really be able to make it. I can’t answer for the broader class of individuals who may or may not make it to the criminal Bar. There are some really good people in there and coming up through there. We need to make sure, in so far as we can, that we are able to use them for prosecuting in cases that we are prosecuting.
Q53 Mr Buckland: I am a little unclear, Mr Starmer. The position has been, has it not, that the independent Bar in agreement with the CPS had its own quality assurance process by which barristers would be put into different categories according to experience, 1 to 4?
Keir Starmer: Yes.
Q54 Mr Buckland: So grade 4 prosecutors would be able to do the serious cases such as rape.
Keir Starmer: Yes.
Q55 Mr Buckland: That system was wholly discrete and different from any system that was applied to CPS in-house advocates. You are advocating a unified panel, are you, which would involve both in-house advocates and self-employed barristers, who would then be put on different levels of experience? For example, the old unified Attorney-General’s Panel would have A, B and C lists. Is that the approach you are taking there?
Keir Starmer: First, the 1, 2, 3, 4 ranking wasn’t across the whole country. The internal scheme wasn’t radically different from that. They were broadly comparable. I have always said they were a broad set of standards. There are slightly different things for in-house advocates that we <?oasys [poc10p0] ?>have to do that you don’t have to do for the external Bar because we have a duty of care: they are our employees, etc. You can’t have precisely the same. It is not a unified panel. I don’t want to go too far into this because we’ve been in negotiation about this and the final panel hasn’t been agreed as such, although we are a long way down the road. The general idea is that there will be a panel for each circuit. We’ve analysed roughly the number we would need on the panel according to the caseload and the amount of work that we are doing with our in-house advocates, etc., etc. Quality advocates can then apply to the panel. It will be all those with rights of audience, and thus open to solicitors as well as barristers, and it will be a quality controlled panel. You will have to go through a quality criteria to get on the panel. It is not dissimilar to the sorts of things you have for other panels.
I was always taken by the civil panels in the civil area. Governments and local authorities, etc., were able to run a panel of people who wanted to act on their behalf. I am very keen to have that idea. I think there is something significant about wanting to be on it and being able to say, "I’m good enough to be on it" that will, I hope, make the relationship between us and the Bar much better.
Q56 Mr Buckland: Finally, do you think the proportion of criminal cases being dealt with by the directly employed Bar for the CPS at the moment in the Crown court is about right, too much or too little?
Keir Starmer: I think at the moment it is about right. There is no plan to radically expand the amount of work that will be done by the in-house advocates. What I want to do is to develop the good so that they can progress. It is a fairly young scheme, so people who are in-house advocates will have classically four or five years’ experience. I think some of them are good enough to go on and do more complicated work as they get more experience. That is what you would expect from good people. I want to stretch those people so that they are doing really good work, properly controlled and quality controlled as they went on. But I don’t think massively expanding the cadre or the in-house team is appropriate in the position we find ourselves in at the moment. I have made that clear to the self-employed Bar. What I can’t do, and I’ve made this clear to them, is to tell them necessarily what I think the mix will be in five years or 10 years, etc. We only have to look at the last 10 years of the CPS to see that things change quite significantly.
Q57 Mr Llwyd: Can I ask you one final stand-alone question about extradition? I am sure, with the Chair’s permission, if you wish to write to us with a response that is fine. I don’t want to put you on the spot unnecessarily. The Crown Prosecution Service is independent, as we know. It weeds out weak cases and, by and large, only puts cases before courts where there is a case to answer and, crucially, where it is in the public interest so to do. However, in extradition cases the CPS considers that it has no such independent role. This means that it will present cases on behalf of foreign states even if, in its own judgment, they believe that a court should decline to order extradition for very good reasons to do with fair trials, race, religion, danger, etcetera.
My three points are these. I stress that if you wish to respond in writing then please do so. Are you, Mr Starmer, comfortable that the CPS acts on the instructions of another State in such cases? Secondly, do you accept that there are valid arguments that the Crown Prosecution Service is not, in fact, an agent of the requesting state at all? Finally, would you be content for the role of the Crown Prosecution Service to be looked at as part of the current Government review?
Keir Starmer: I will come back to you on those questions in writing because the answer will vary depending on the international obligation that is being discharged. There are different regimes for different types of extradition, for different countries or groups of countries and then, of course, for Europe. There is no one answer to all of those questions, I’m afraid. It is much more complicated than that. An answer that might be given, for example, for a European case might very well be different to an answer that would be given for extradition to a Commonwealth country and that is dealt with under a different statutory regime because the international obligations are different. They are a series of complicated questions with no one answer.
Q58 Chair: We would be very glad to hear from you on that and also on the one or two detailed points which you have been asked to provide.
Keir Starmer: I hope we have a note of everything that we promised to provide.
Chair: If not, you will see the transcript of the hearing so that you can look at how your words have been reported. That will be an opportunity to check the things that we asked for. By all means get in touch with our clerks if you have any questions about that. Thank you very much to both of you.