CPS faces arresting issues

The Crown Prosecution Service is reinventing itself after being stung by a barrage of criticism.

Top of the agenda for this underfunded and understaffed organisation are cracked and ineffective trials and improving communication, says Paula Rohan

'The Crown Prosecution Service (CPS) is an underfunded organisation staffed by bald lawyers who have been pulling their hair out for years,' according to one criminal defence solicitor speaking at last month's Criminal Law Solicitors Association (CLSA) rally.

For the 7,500 CPS lawyers - around two-thirds of whom are solicitors, and the remainder barristers - the last 17 years have certainly not been plain sailing.

Even the Attorney General, Lord Goldsmith QC, has admitted that the first stage of its development - which took place between 1986 and 1997 - was a 'difficult' time.

Professor Gary Slapper, director of law at the Open University, agrees.

'The old system of prosecutions run by the police was deeply embedded in British life,' he says.

'Setting up a completely new national system involving thousands of people all over the country, completely new procedures, management lines, and prosecution criteria, and dropping all of that out of the sky in 1986 to start working immediately was an immensely difficult task.'

Life became easier when 'stage two' brought a 30% budget boost.

Changes were also prompted by a 1998 report by Sir Iain Glidewell, which recommended major alterations including dividing the service into 42 areas - to mirror those operated by the police - with each headed by a chief Crown prosecutor.

Things were only just settling down when Lord Goldsmith earlier this year unveiled his vision for a third stage - where CPS lawyers become 'fighters for justice', taking a more proactive role at every stage of the prosecution process (see [2003] Gazette, 6 February, 3).

The groundwork has been in progress for some time.

From the beginning of this month, the CPS structure was re-jigged so that its lawyers practise in local criminal justice boards, working in the same building as the police.

Another major change has been the charging programme, where CPS lawyers rather than the police make decisions about charges.

This has led to a drop in the number of cracked and ineffective trials in the five areas where they were piloted, and the government will be looking to roll it out if the full evaluation supports the preliminary results.

A cracked trial happens when a case is concluded without trial, while an ineffective trial happens when a hearing is postponed on the day it was due to go ahead.

More contact with witnesses is something else the CPS is aiming towards, and it has also opened up consultation with the general public on policies relating to various offences such as domestic violence and homophobic crime.

Even the defence is in favour of many of the changes.

Rodney Warren, chairman of the Law Society's access to justice committee and CLSA director, says: 'The CPS is justified in being proud of its recent achievements.

Inescapably, the morale and performance in the CPS was lamentable some years ago, to the extent that it became cause for public concern.

There have been some effective changes in structure and operation - as in the other areas of the criminal justice system - given the rise in crime figures.'

But one area in which Mr Warren says there is room for improvement is communication between the prosecution and the defence, which is 'never invited to the party' when it comes to discussions.

Some CPS members agree with this and have made efforts to forge links.

Penny Palmer, a Gwent-based prosecutor and also an official of the First Division Association (FDA), a representative body for senior public sector workers, has recently joined Mr Warren on the Law Society Council as the CPS representative.

She is hopeful that this will lead to a louder voice for the CPS, as well as making invaluable contact with the defence.

'It is important for us to influence the shape of legislation because all too often representations are made on our behalf from people who no longer practise,' she argues.

'On the face of it, their suggestions look sensible and logical but when it comes to implementing them, that is when you fall into difficulties.

There are lots of practical issues that, unless you do the job day-to-day, you don't understand.'

One issue Ms Palmer will be pursuing with zeal is the matter of CPS non-lawyers - designated caseworkers - taking on greater control of cases and the apparent erosion of some of the supervisory safeguards.

'We are concerned because we feel that they lack independence and have no adherence to any external professional code,' she says.

'The independence of the CPS lies in the independence of individual prosecutors.

Then there is the question that if the prosecutor isn't a lawyer, why should the defender be a lawyer?'

A CPS spokeswoman says: 'The CPS is aware of this issue and the Director of Public Prosecutions will shortly issue a reminder to all CPS areas about the remit and supervision requirements for designated caseworkers.'

Other challenges facing the CPS still include clamping down on cracked and ineffective trials, branded 'a serious and urgent problem' by the CPS Inspectorate in its 2003 annual report.

Professor Slapper says the charging pilots may go some way to solving this problem, but he argues that blame is often heaped unfairly on the CPS because much of the problem is beyond its control.

'It should always be remembered that there are many factors that make it very difficult for the CPS to work perfectly, and to prosecute to conviction 100% of the cases in which there has been a reported crime,' he says.

'We require, as can be expected in a civilised democracy, good clear evidence before anyone can be convicted of a crime.

In a great many crimes, it is virtually impossible for the police to get any hard evidence against an alleged culprit.'

But barrister Neil Addison, a former CPS prosecutor who is now in private practice, says that if there is one fundamental flaw in the CPS, it is its 'shambolic' filing system.

'It sounds like a simple thing but its ramifications run throughout everything the CPS does,' he insists.

'For CPS lawyers and agents, it is hit or miss whether they can find the correct items for the court or present all necessary information.'

Criticisms aside, CPS management is confident that prosecuting staff are now settled within the organisation.

Angela McGuinness, a senior Crown prosecutor in Sussex who shifted from private practice to join the CPS last autumn, says it was the best move she ever made.

'It is the same sort of work with the same legal arguments but you don't have to deal with the moral dilemmas,' she says.

'As a defence solicitor, you base your case on the evidence the defendant puts forward, but it's hard to enjoy that sort of work when you feel that he or she is not the best person in the world to be representing.

I also don't miss getting up at 3 o'clock in the morning and being on a rota all the time.

You can have a much better private life as a prosecutor.'

However, Ms Palmer, a veteran CPS employee, says that although she enjoys the daily unpredictability of her job, CPS staff still struggle with too many legislative changes.

'They are all additional burdens on an organisation that is underfunded and understaffed,' she argues.

'I would like to see it have an opportunity to stabilise so that we can see whether changes are of any benefit or not - at the moment the change is far too rapid.'

The Director of Public Prosecutions, Sir David Calvert-Smith, says this is unlikely in light of the government's vision for the CPS and the wider criminal justice system - and he is not the only one.

For example, Mr Warren says he envisages the CPS taking over prosecutions from agencies such as Customs & Excise.

Mr Addison also predicts that big changes are on the cards and cites the Proceeds of Crime Act 2002, which sees the CPS taking an active role in seizing criminal assets.

'When the CPS was first set up its role was - perhaps naively - seen as merely reviewing police charges and presenting cases,' he says.

'But this is clearly changing.'