The furore that surrounded the leaked CPS e-mail which revealed that they were putting costs savings before justice has died down a little. I put forward my own thoughts on this embarrassing revelation in my last post The Truth is Out There. I promised a follow up which would look at how I think the situation could be improved. Just in case it isn’t obvious that forms the subject of this post.
Before I wander off into my own thoughts I ought to set out how I see matters:
- The CPS are committed to using their own advocates because it saves money, they aren’t about to do a huge u-turn.
- The CPS have been subject to the same swingeing cuts that all government funded agencies have and cannot throw money at their problems to resolve them.
- The CPS can point to the savings they have made of proof of the effectiveness of their strategy but I think there are knock on effects causing higher costs elsewhere in the criminal justice system which have not been quantified.
- The criminal justice system is in a sorry state due to cuts, poor high level management, poor use of technology and a host of other issues.
- The way advocates are remunerated does not work as it should.
When I first started clerking, the CPS operated in much the same way as solicitor’s firms. Case workers handled the preparation of the case and instructed counsel at the very outset of the case. The CPS grading system meant that cases were properly allocated to a barrister with the correct level of experience and skills to handle the matter. There was therefore a team allocated to run the matter through the court process; the case worker and the barrister. If the barrister failed to properly prepare, performed poorly at court or frequently returned cases with little notice then that barrister would find his work from the CPS suddenly drying up.
Now it appears that the CPS use their in-house advocates to deal with the vast majority of the initial crown court hearings (plea and case management hearings or PCMH). The cases are not allocated to a specific advocate and so are often poorly prepared prior for trial. Because the case may only be allocated to an advocate the day before a trial it allows little time for problems to be rectified and this can cause wasted court time as cases have to be adjourned or else are dealt with by a very late guilty plea (known as a cracked trial). If an in-house advocate performs poorly there is, at least from the evidence I have seen, no sanction for poor performance.
The report by HM CPS Inspectorate of March 2012 has much to say on this subject:
- Effective preparation for trial is important in every case.
- The original Bar/CPS framework committed the CPS to identifying cases that are likely to be contested and selecting the trial advocate as early as possible, preferably 14 days before the PCMH to ensure advisory work and case preparation can be undertaken.
- Where counsel is instructed they should wherever possible conduct the PCMH.
- These key principles are only adhered to in the most serious and complex cases.
- Only a small percentage of cases are allocated with any consideration of continuity of advocate.
- A high proportion of PCMH are covered in-house, work is often allocated the day before the hearing.
The report also states that the training and development of in-house advocates is not what is should be. The crown advocacy training for in-house advocates in 2010-11 saw only 45 reach the required standard from a field of 248, a failure rate of 71%. The course is supposed to teach the minimum standard required but is seen by those who attain it as the only way that cases should be presented. This produces “formulaic, mechanical advocacy which is dull, lacklustre and repetitive”. When considering the importance of the presentation of a case to a jury this is a fundamental problem. Ongoing development via in-house training is erratic depending on which local CPS office is involved and 35% of in-house advocates felt they did not have sufficient support with a worrying 10% feeling that they lacked the necessary skills to perform the role. There is a limit to what you can learn in the class room and the report points to the need for in-house advocates to undertake more trial advocacy. This however does not happen and what little is learned from in-house training is seldom tested in practice with in-house advocates completing on average less than four effective trials per year.
This is where the Bar truly excels, in it’s initial and ongoing training. Throughout pupillage a barrister will see a vast range of cases and advocacy styles. Pupils review case papers, prepare advisory documents, attend advocacy training courses run by the Inns of Court and learn on the job. During the second six months of pupillage they will undertake lower level cases, usually in the magistrates courts, to put into practice what they have seen and been taught. Gradually as they gain experience and skills they will progress onto more complex cases and start to appear more regularly in the crown court. Surrounded by colleagues with vast collective experience, a junior barrister will learn from all around.
The effect this lack of proper training and development is clear and the report offers these observations:
- There has been an overall decline in the performance of in-house advocates dealing with non contested hearings, primarily PCMH, since 2009.
- In-house advocates were not adept at identifying what information a court would require at a non-contested hearing or anticipating what questions a prosecutor might need to answer.
- In-house advocates frequently fail to be of any real assistance in sentencing, leaving the dialogue to defence counsel and the judge.
- The acceptance of inappropriate pleas was an area of concern, particularly in relation to recording of basis of plea.
- In trials opportunities are missed during cross examination and speeches.
- There are failures to challenge clearly inadmissible and prejudicial evidence.
This presents a fairly bleak picture. Work is poorly prepared and allocated in such a way that it is near impossible for an advocate coming in at the last minute to properly prepare and rectify any problems. In-house advocates are not as well trained and mentored as the Bar and the standards of in-house advocate’s skills are declining creating a greater gulf between the two. Just to really hammer the final nail in the coffin the report has this to say on the a hidden impact of the way work is allocated “the junior Bar is suffering now from inexperience and they are not all developing as quickly as they should . The effect of reduced agent usage in the magistrates’ courts and the limited work at levels 1 and 2 in the Crown Court is beginning to show in terms of the quality delivered”. The way that work is allocated is failing to develop in-house advocates and the junior Bar which in future will inevitably mean lower standards of prosecution advocacy.
Leaving aside the obviously higher standards of training that the Bar provides, what is clear is that the management of the allocation of CPS work both to in-house advocates and to self employed counsel is deeply flawed. I think I have spotted what the problem is and it is so very simple, the CPS don’t employ barrister’s clerks.
Clerks manage diaries to ensure that wherever possible the instructed barrister retains the case throughout. Clerks harry, harass and harangue crown court listing offices to do all they can to make sure that counsel who dealt with the trial can attend at the sentence. Clerks allocate work based on the skills of the barristers they have available and when it is clear they don’t have someone with the right skills they find someone from outside chambers who does. Clerks gently nurture barrister’s careers; starting slowly with summary trials and traffic courts, moving on to crown court appeals, mentions and sentences, progressing onto low level crown court trials such as thefts, possession of drugs and ABH, incrementally guiding a barrister to the most complex of cases.
The CPS need clerks. Real clerks with an understanding of how to manage a diary and how to allocate work to make costs savings whilst at the same time progressing careers and ensuring that justice is properly served. Maybe the CPS could grow their own as they are attempting to do with in-house advocates, but initially they need some external assistance.
The CPS and the Bar need to get together and plan how to unravel this messy tangled ball of poor management and mistrust. A transparent plan which tells all how the CPS and the Bar will work together on ensuring that the prosecution of cases will focus on being cost effective whilst at the same time ensuring that all who prosecute are highly proficient. The need for succession must be addressed and future in-house advocates and self employed barristers must be certain of a future which ensures both have the tools to the do the job and access to the right sort of work to allow them to progress. Some joint commitment to training with in-house advocates being sent on some form of non-practising pupillage in chambers. Pupils could go to the CPS on secondment and learn how crown prosecutors do their job to better understand the processes involved.
Some of the problems the Bar and the CPS face with the allocation of work and the continuity of advocates are caused by the court service. By working together with the courts a better system of case management could be developed to ensure greater continuity. The judiciary would doubtless be keen to have well presented cases before them and would lend their weight to any well considered proposals.
The DPP has quite rightly got egg all over his face due to that e-mail and the disastrous CPS strategy it has revealed. The Criminal Bar Association rather than pointing and laughing should hand him a towel and extend the hand of friendship. Only by working with the CPS will the criminal Bar be able to ensure that the future is not bleak for those who prosecute.