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I ask your Lordships to compare that with the course of training undertaken by a young barrister to reach the point at which he is able to go into court. He will need a law degree, of course; he will have to spend 12 months passing his Bar examinations; and he will have to spend 12 months in pupilage and will not be entitled to appear in court at all for the first six months. During that time he will be under the close supervision of his pupil master. It is only at that point that it is thought that he can appear in the most modest magistrates’ court in a contested hearing.

Putting the two courses of training side by side, your Lordships can quickly perceive that there is absolutely no comparison. More importantly—this is the point made by the noble Lord, Lord Kingsland—a barrister is subject to regulation. There is a regulatory authority, a very strict code of conduct and a very considerable penalty should he breach that

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code of conduct in any way. I agree with the noble Lord, Lord Kingsland. I was under the impression that if courses were provided by ILEX, they would lead to an ILEX qualification, which I would respect very much, and that ILEX would act as a regulatory body, but that does not appear to be the case. I hope that the noble and learned Baroness will be able to assure us that it is so, but as I understand her letter that is not intended.

A further point made by the noble Lord, Lord Kingsland, which I also refer to, is that this is essentially mission creep. In her letter to me the noble and learned Baroness refers to the fact that it may be some years before the CPS seeks to extend the designated caseworker remit to summary-only offences where imprisonment is a sentencing option. At the moment the proposal is that a designated caseworker should appear only in summary-only offences where prison is not an option. In a few years that will be proposed and no doubt we shall go on from there until, in the end, designated caseworkers with very limited training will be conducting trials in magistrates’ courts to the great detriment, I suggest, of the criminal justice system.

The amendment proposed by the noble Lord, Lord Kingsland, has our support. While we do not object in principle to designated caseworkers appearing in court, they must have proper training and they must be regulated. There must be a sanction to ensure that they carry out their functions in a way that is compatible with the principles of the way in which advocacy should be carried out in the courts of this country.

Baroness Butler-Sloss: My Lords, I, too, support the amendment. I am very grateful to the noble and learned Baroness the Attorney-General for keeping me in the loop with copies of letters written to noble Lords and also for a letter of last week from her to me. I retain some concerns. We are dealing with the administration of justice in a criminal court. As the noble Lord, Lord Thomas of Gresford, has pointed out, the training of a designated caseworker, even with the pack, will not be sufficient in some cases. One has to bear in mind that in the magistrates’ court now, magistrates are lay men, the defendant may or may not be represented—probably not by a lawyer—the clerk need not necessarily be a lawyer in the criminal courts these days and is quite often a lay man and if the prosecutor has no real experience of the law and a point of law is raised, there will be real difficulty. We also need to be sure that the prosecutor has the ability to cope with the unexpected.

Two things put forward by the noble Lord, Lord Kingsland, are particularly important. One relates to offences that are not subject to imprisonment. Although the purists among us might prefer a lawyer to conduct the case, as a matter of reality, in the old days a warrant officer sometimes did the case so there is a real precedent for that. But that was not the kind of case where someone might go to prison. Without the absolute assurance that those who have had the pack, a few days’ training and the experience of going into court will have someone at their elbow to tell them what to do when the unexpected arises, they might find themselves not sufficiently independent and certainly

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not sufficiently clued up about the unexpected. There will be a danger of a miscarriage of justice as a result of which someone might go to prison, particularly a defendant who is unrepresented as so frequently happens in magistrates’ courts. Therefore, I very strongly support the fact that the matter should be up front and that those without legal training should not be able to prosecute where imprisonment is a possibility.

I am also very concerned about the regulation of the designated caseworker. I listened with a degree of dismay to what is apparently the present position. Although I, too, respect the ILEX training, I do not believe that its code of conduct begins to be adequate for the importance of the work that it does. The noble and learned Baroness the Attorney-General says that it is working towards a code of conduct similar to that of the Bar and the Law Society. I am absolutely delighted to hear that, but I would prefer designated caseworkers not to be able to undertake the work until they are actually regulated by that code of conduct. Bearing in mind not just the hours but the days and days spent on the Legal Services Act last year, where everyone was regulated up hill and down dale, particularly for the Bar and solicitors, it is ironic that a group who are not legally trained are able to carry out prosecutions which might involve imprisonment on the creep system, about which we have been told, without the matter coming back to your Lordships' House and the other place. It seems to me that such people should not be able to creep into imprisonment cases, admirable though I am sure they are. If the Minister tells us that some of them are legally qualified, that is fine. However, she will also have to tell us that a great many of them would like to be legally qualified but that they have not yet got to that point. It seems to me that until they get to that point, they need regulation as good as barristers and solicitors and that they should not be able to prosecute cases where someone might go to prison. I am very supportive of the amendment.

The Earl of Onslow: My Lords, an old expression states that if you pay peanuts, you get monkeys. In this case, I suspect that miscarriages of justice could happen, which would arise because people are not properly trained. By miscarriages of justice I mean that the guilty go free and the innocent go to prison. If somebody is not properly trained or regulated, that is more likely to happen than with a proper barrister. That is always possible, as we know of cases where that has happened and should not have done. I suggest that this will happen exactly if that lower standard of people is allowed to prosecute without any regulation or training. The noble Lord, Lord Thomas, read out how much training they have to have; frankly, it is practically less than that for driving a pony in an amateur dressage test. What is required is tiny, and that is not good enough.

Noble Lords: Oh!

The Earl of Onslow: My Lords, If I make good jokes, I am delighted but it brings the point home. That is what should happen, and I therefore support the amendment.



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Lord Mayhew of Twysden: My Lords, when the noble and learned Baroness the Attorney-General responds, which I feel sure she will be doing in a few minutes, might she deal with the attitude of the Magistrates’ Association? In this clause, we are dealing with procedures in the magistrates’ courts. The magistrates deal with 95 per cent or more of all criminal cases tried each year, which is something like 2 million. Is it not the case that the Government, so far as this provision was concerned, got off to a thoroughly bad start with the Magistrates’ Association?

The noble and learned Baroness the Attorney-General will know that the association said, in its briefing prepared for this House before Second Reading, that its priority was,

Did it not also say:

Of course, that was before the adjustments made in the right direction by the Government. However, when the noble and learned Baroness responds, could she say whether the magistrates have been consulted specifically on whether they are content with the present clause—without the deficiencies being remedied, as they would be in the amendment from my noble friend—and what their position is?

Lord Elystan-Morgan: My Lords, this amendment does not have the effect of banning all non-legal staff from court prosecutions. Indeed, it is right that there should be such a power and responsibility within a limited parameter. Nevertheless, I believe that the amendment is to be supported for limiting that within proper bounds. One can summarise the case thus: these people are carrying out an essentially professional function, certainly insofar as more serious cases are concerned. It is only right that they should be professionally qualified and disciplined, and should be answerable to a professional code of conduct insofar as matters outside the ambit of the amendment are concerned.

Viscount Bledisloe: My Lords, I entirely agree with the noble Lord, Lord Kingsland, that it is essential for people fulfilling these duties to be subject to behaving in accordance with how a prosecutor ought. To my mind, it does not matter whether that will in fact lead to prison since, in many cases, being convicted may be very serious for a person who has never been in trouble before even if he is not to be imprisoned for it.

6.15 pm

I do not quite understand the difficulty, since these people can be authorised to carry out any legal activity. They can presumably be told that they can do some activities and not others. Again, however, if such an authorisation is given by a designated body it must be able to remove it. Therefore, there must be a power to deal with people whose conduct is not appropriate for a responsible prosecutor.

One must remember that it is actually much more difficult to behave correctly when one is prosecuting at very short notice, on a relatively minor offence, a man who is not adequately defended. There is a much

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greater danger of malpractice there—not deliberate, but inadvertent—with keeping him in than there is in a full-scale trial in front of a puisne judge with representation on all sides and everyone objecting if one strays from the straight and narrow.

One must also remember, although this is not by way of any criticism, that these people who will prosecute will in fact be employees of the prosecuting authority. There will therefore be an inevitable temptation for them to stray a little to try and achieve the result that they have been sent there to achieve. Again, I am not saying that they will be fraudulent, but it is easy to overstep the mark a little—particularly if, as the noble and learned Baroness, Lady Butler-Sloss, pointed out, there is probably nobody in court who is able to say “You can’t do that”, because they are not legally qualified to do so. Therefore, it seems essential that anybody entrusted with a prosecution is subject not to professional regulation in the sense that is normally meant but to proper regulation whereby if he strays from the straight and narrow he can either be reprimanded or suspended—or whatever is appropriate.

I would like some enlightenment from the noble Lord, Lord Kingsland, on the point about not prosecuting in criminal cases. His proposed subsection (1A) says that a person can,

Surely, that means that it is open to the regulator to say, “You’re very green; you can only do very minor cases”, or “You have done a lot and are doing it rather well; you can be advanced to a higher level”. It would not enter everybody qualified to do anything of which he is capable under this subsection. If I thought that it would be working that way, I would be less worried about the qualification point.

I take on board what the noble Lord, Lord Thomas, said about the degree of training, which he contrasted with what a barrister has to do. However, a barrister has to be trained to perform in any part of the law, while these people only have to know the relatively narrow procedure for dealing with magistrates’ court criminal cases, and so on. Therefore, their training will obviously not be comparable. I have to confess that what the noble Lord, Lord Thomas, read out seemed to stray a little too far in the opposite direction. Again, however, the regulator can surely set how much training there is to be; the noble Lord, Lord Thomas, spoke as though that amount was to be fixed for all time and all types of cases. If it is, that would be bad, but I would have thought one could have different levels of training and degrees of experience for varying case types, and be regulated according to your knowledge and experience.

Lord Neill of Bladen: My Lords, I declare an interest as a barrister. The Bar is opposed to the proposal and the chairman has written to a number of your Lordships. I also declare an interest having once occupied the role of chairman of the Bar Council, so noble Lords can apply or discount what I am about to say. I stress that noble Lords have covered the ground. Without the invidious nature of picking out one of the speeches, I was impressed by the way in which the noble and learned Baroness, Lady Butler-Sloss, summarised things.



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Anyone who has ever sat as a judge or an arbitrator knows that you are enormously dependent on the quality, accuracy and fairness of the advocacy that comes to you and on whether you get proper assistance, for example, in relation to powers of sentencing or whether enactments have been repealed or amended. Stone’s Justices Manual shows the incredible part played in enacting laws and amending earlier ones. The law is difficult; sentencing is difficult; and lay magistrates are entitled to the highest possible quality.

Lord Slynn of Hadley: My Lords, like my noble friend Lord Bledisloe, I do not see where the problem of requiring training and providing for some form of regulation lies. For reasons that so many speakers have already given, which I shall not elaborate, it is quite obvious that it is essential to have people with experience and training to assist the court. This is as plain and ordinary a case for training and regulation as any that the House has discussed for a very long time.

Baroness Howe of Idlicote: My Lords, I shall be extremely brief. As a previous magistrate and someone who is surrounded by lawyers in my family, I may be one of those who have been trained almost by default in many of the procedures. Having listened to the debate, I am completely convinced by the noble Lord, Lord Kingsland, and the noble Lord, Lord Thomas of Gresford, and I pay tribute to my noble and learned friend Lady Butler-Sloss.

There are crucial things that I would want in a court. A magistrate has a clerk of the court, who is the legal expert on areas of sentencing, for example. However, the issue is not only about that. We need to know that people are being addressed by staff who are thoroughly qualified, able and, above all, independent and regulated. What the noble Lord, Lord Thomas of Gresford, said about training for barristers is crucial. The time taken to experience what happens in a court and so on is vital. The fact that they continue to learn and are independently regulated by ILEX is hugely important. I am thoroughly in favour of the amendment, which I hope will be put to a vote—indeed, all the amendments are crucial.

The Attorney-General (Baroness Scotland of Asthal): My Lords, I thank all noble Lords who have spoken. First, I need to say to the noble Lord, Lord Kingsland, that as a fully paid-up member of the profession I do not think that the Bar is under threat. In the past 10 years, the CPS has been increasingly successful in attracting senior members of the Bar and solicitors to work for it. As a result, the quality of advocacy has been significantly enhanced. I do not think that the noble Lord is suggesting that senior members of the Bar who are attracted by employment in the CPS should be debarred from so doing. That form of protectionism is far from his heart.

Quality is most important and I agree with all those who have emphasised it. I do not think that the young Bar is frightened of competition either. I hear what the noble Lord, Lord Thomas of Gresford, says about training. He referred to those DCWs who do not do contested cases. The training for those who do such cases is much greater. I gently say to him that

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one often finds that those who have had 20 or 30 years’ experience working in the Courts Service before becoming designated caseworkers know a thing or two more than a 21 year-old young barrister who is doing his or her first cases.

Quality is important and I remind the House that the DCWs about whom we are talking have been around and able to perform this work since 1998. They have gained a great deal of practical experience in the court process and through that experience they are well equipped. Who does this work? The average age of a designated caseworker is between 30 and 49; 68 per cent are women and 32 per cent are male; and 71 per cent are in the age bracket that I have just described. They are seen as a good, sound resource. Many of them participate in obtaining qualifications. Twenty-nine are studying for legal qualifications; 22 are studying for their legal practice certificate; and seven are on the Bar vocational course. Between 1998 and 2008, 566 DCWs were trained by the CPS. The noble and learned Lord, Lord Slynn, and the noble Viscount, Lord Bledisloe, are right that training can be tailored to meet needs.

DCWs will be doing three tiers of work. Some will do summary cases only. Let me give the House the flavour of summary cases. They include common assault, drink-driving, threatening behaviour, harassment, taking without consent, wasting police time, assaulting a police officer, being found in enclosed premises and motor vehicle interference. For non-imprisonable offences, DCWs can go to the dizzy heights of prosecuting speeding, careless driving, no insurance, no driving licence, no MOT, construction and use regulations for motor vehicles, ticket touting, touting for hire services, begging, selling alcohol to a person who is drunk, kerb crawling, soliciting, the offence of dogs worrying livestock—a terribly difficult matter—being drunk in a public place and obstructing the highway. We are not talking about the most serious offences, although I am not suggesting that these offences are unimportant.

We are considering an incremental situation starting with tier 1, so that when someone first becomes able to present cases they will be summary offences only. Tier 2 will be summary offences only and non-imprisonable. A gradual increase is appropriate at this stage. I understand those who say that all the matters dealt with by designated caseworkers should be non-imprisonable. I made it clear the last time we debated this matter that that would be regulated by the director’s instructions. We have an opportunity to regulate what DCWs do. I understand the comment of the noble Earl, Lord Onslow, about paying peanuts and getting monkeys, but I assure him that DCWs do not fall within that category. Miscarriages of justice occur when the quality of the advocacy is not good.

The Earl of Onslow: My Lords, that is exactly the point that we are making. Somebody should be regulated and tested to make sure that they can do all the things that the noble and learned Baroness says. That is all one is asking for. In other words, the fact that they can do all these things is one thing, but they should be trained and they should be disciplined if they get it wrong.



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6.30 pm

Baroness Scotland of Asthal: My Lords, they are trained; they are regulated by the CPS; they are properly managed. They have access to supervision by a trained lawyer all the way through. The new procedure, which noble Lords will be aware of, is that a qualified lawyer will look at each case, will be responsible for the charging decision that is made and will be able to prepare matters in order to decide whether a case is amenable and should be dealt with by a DCW or some other form of representation. The noble Earl’s concerns about management, control, testing, training and ensuring quality are certainly covered by the management structure of the CPS. I remind the House of the National Audit Office report, which spoke very favourably about the quality of DCWs. I understand the concern that has been expressed, but that concern is not merited.

I would like to answer before the noble Lord, Lord Thomas of Gresford, rushes to his feet. I ask him to give me that courtesy, if he would not mind.

In the concerns that have been expressed, the noble Lord, Lord Kingsland, raised the issue of the codes within the regulatory framework of the Institute of Legal Executives. As I said, professional integrity is the cornerstone of the current Crown Prosecution Service statement of ethical principles. It is enshrined in the codes of conduct and advocacy of the Institute of Legal Executives. The harmonisation of these codes with those of the institute will ensure that designated caseworkers provide the same ethical safeguards to the court as the other legal professions. It follows, therefore, that compliance with the current and future codes within the regulatory framework of the Institute of Legal Executives takes precedence. Regulation by the institute will be every bit as meaningful and robust for designated caseworkers as it is for barristers and solicitors. I do not envisage any circumstance where a designated caseworker or, indeed, a Crown prosecutor would face criticism from his or her line manager for putting those ethical responsibilities first.


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