New survey of magistrates highlights serious concerns about self-representation in court.
Are cuts tipping the scales of justice? (Image: Justice via Shutterstock.com)
Nearly a quarter of the Crown’s state prosecutors have been cut as part of budget savings, leaving many in the justice system, including senior judges, expressing grave concerns about the state’s performance in some criminal trials.
Research by the Bureau into the Crown Prosecution Service (CPS) found:
The level of inefficiency has reached such an extent that judges are increasingly expressing their exasperation in court. One senior judge described the CPS’s performance as a ‘disgrace’, another as ‘a lamentable state of affairs’ and a third told the CPS that the court would ‘not put up with this kind of disdain’.
Employees of the CPS have found themselves facing increasing work pressures after a Comprehensive Spending Review undertaken in 2010, set out plans for a budget reduction of 27% in real terms by 2014/2015.
This has led to a large reduction in staff. In the last three years the CPS lost 23% of its barristers (202), 22% of its solicitors (518) and 27% (296) of its higher court advocates, according to replies to Freedom of Information requests made by the Bureau.
The Bureau’s research has also found that the number of witness care officers and care managers, who organise getting key witnesses to courts has dropped by 99 members of staff or 43% since 2010 when there were 230 people employed in these roles.
While fewer staff are needed in the CPS because the number of trials dealt with by the organisation has fallen by 13% since 2010, experts are concerned the system is being stretched.
One of the problems often cited is the Crown’s increasing lack of preparation for trials.
In some cases CPS barristers are arriving at court without sufficient evidence, having not read case files and without key witnesses. Such failings can lead to a case being thrown out.
Michael Turner QC, chair of the Criminal Bar Association has reviewed the cost of such failings and explained, ‘the supposed budget cuts have resulted in no savings at all for the criminal justice system. At the end of the day if weaknesses are leading to breakdowns and re-trials then the tax payer ends up spending more money in the long run.’
In 2012 there were 45 homicide trials that failed because the CPS provided insufficient or no evidence after a not guilty plea. This was equivalent to one in twenty homicide cases and a rise of 50% from 2010.
Such trial failures are recorded as due to ‘no evidence’, and the defendants are acquitted. The term also encompasses cases when the prosecution decides to pass on chasing for one particular charge, instead opting to add the charge to another, more serious crime.
The rate at which the CPS offers ‘no evidence’ has also risen for burglary, robbery, fraud and forgery, and criminal damage trials.
A spokesperson from the CPS said: ‘The most common reasons for the need to offer no evidence is that new evidence becomes available which undermines our case, or because victims or witnesses withdraw their support for the case. We can and do take steps to overcome these problems but it would be misleading to portray such issues as CPS inefficiency.’
However, Turner, a criminal defence barrister, voiced his concerns that the figures could also reflect initial overcharging, where a defendant is charged for a serious crime which the subsequent evidence may not reflect. ‘From my own experience I’ve seen many cases where the CPS have overcharged and by the time it comes to trial they realise they are never going to get a conviction for that crime,’ he said. ‘I’d suggest that the CPS should review its no evidence cases to check that it had been charging appropriately,’ he added.
A trial can also be jeopardised if the CPS fails to disclose all the evidence it plans to use, to the defence.
In the first quarter of 2013 the number of trials declared ineffective because the prosecution failed to disclose materials doubled, compared to the same quarter of 2012.
In 2012 45 homicide trials failed because the CPS provided insufficient or no evidence after a not guilty plea. This was the equivalent to one in twenty homicide cases and a rise of 50% from 2010.
Increasing inefficiencies are not only being recorded in Crown courts. In the magistrates courts the number of trials with disclosure issues rose by 40% between 2010 and 2013, making up 0.32% of all cases in 2010 but 0.62% of trials in 2013.
A CPS spokesperson said: ‘We have had to make savings of 27% to our budget and naturally staff numbers have reduced, but we are protecting frontline teams and improving performance. Overall conviction rates have remained consistent at 85% or above for the past eight years and we have clearly demonstrated that we are able to successfully prosecute the most serious and complex offences; the conviction rate for violence against women and girls, including rape, hit a record high in 2012/13.’
But the level of problems occurring has led some judges to speak out.
Earlier this month top CPS officials met with judge Richard Griffith-Jones, who sits at Warwick Crown Court, to explain the mistakes that led to a retrial for a murder suspect.
Previously Griffith-Jones had announced to the court that the CPS had used a single barrister for the complicated case, which involved a bouncer who had allegedly strangled a mother of four to death. The judge said not only should two barristers have been used, but that the CPS advocate used ‘was patently out of his depth’ and made fundamental errors of law, did not understand the pathologist’s evidence and was ‘not competent to do the job’.
Judge Griffith-Jones explained to the court: ‘It is not just about the money, but the terrible cost to the family. This has been a terrible attempt to make an economy, an economy that proves to be a false economy. It is a disgrace. I appreciate that in these days, where public money is short, there is an understandable imperative to save money. But instead of two advocates being instructed where one at least has senior standing and experience, the prosecution deployed a single advocate who was patently out of his depth.’
‘If you’re an in-house advocate and your manager tells you to do a case, you’re going to do it, even if you’re terrified that you’re not experienced enough’, explained Turner. ‘We’re seeing more and more inexperienced lawyers being fast-tacked up to Senior Court Prosecution level and many are simply not up to it,’ he added.
The case prompted Turner to tell the Bureau he believes there is now a ‘two tier’ system for prosecutions. ‘If your case is in the lime-light you’ll get the best silks [barristers] rolled out for you,’ he explained, ‘if not then there’s a chance your case will go to those who are simply not equipped to prosecute the trial properly.’
Elsewhere, last month Judge Jeremy Gold QC from Croydon Crown Court criticised the CPS in his court after they failed to disclose ‘basic paperwork’ on the first day of a rape trial.
The judge adjourned the trial giving the CPS more time to prepare but threatened to find the defendant not guilty if the CPS did not present the correct documents in the future, saying, ‘I can think of no other way of dealing fairly with the persistent failure of the CPS to comply with these orders. There has been a lamentable failure by the CPS to prepare the case for trial.’
Last year nearly 400 criminal trials were handled so badly that the CPS was forced to pay out wasted costs: money to compensate the defence or the court because of ‘improper, unreasonable or negligent act or omission[s]’ on the part of prosecutors. The CPS is also liable for costs accrued in civil proceedings, such as restraint proceedings.
Between 2012-2013 the CPS paid out £1,202,514 in wasted costs, around 40% of these related to civil proceedings.
The latest annual total is the second highest in the last five years, topped only by the amount paid out in 2010-2011. And last year’s total was triple the amount paid the year before.
Late last year Judge Elgan Edwards, the Recorder of Chester also voiced concerns about the CPS in open court after seeing a case of three men charged with conspiracy. The case had taken 11 months to come to trial and yet the CPS barrister did not receive the court papers until a few days before.
Judge Edwards told a plea and case management hearing, ‘For the barrister to only get the papers on the Friday before a plea and case hearing on a Monday just shows the contempt the CPS are showing the court in this case. This is a serious case and it should be taken seriously. How long does it take to prepare a case? You still haven’t bothered to draw up an indictment.’
The judge went on to state, ‘These defendants have had this hanging over them for the last 11 months. This court is just not putting up with this kind of disdain.’ He then ordered the CPS to pay the wasted costs of the hearing and the defence’s expenses.
A CPS spokesperson said: “The CPS strives to prosecute all cases fairly and effectively. Where a costs order is made against the CPS we will look at the reasons for this to identify whether there were any failings on the part of the prosecution that could have been avoided.”
Evidence from the courts
Dan Bunting is a lawyer who works across criminal defence and prosecutions. He is often brought in by the CPS to prosecute its cases.
He recalls a case he was asked to prosecute in 2011 that dealt with a breach of a restraining order. ‘I turned up to court expecting the CPS to provide the bundle of evidence I needed, but when it came to the trial it turned out they had missed the actual document proving the restraining order existed,’ he sighed.
‘I tried arguing for an adjournment to get the order in as evidence but the judge refused and the suspect was acquitted,’ he added.
Kevin Blount, a defence lawyer at Howard and Byrne Solicitors in York, was in the Crown Court earlier this year when a case had to be adjourned for a week because the CPS didn’t have a copy of the CCTV film the whole case was centred on. “The case was put off for a week because the CPS didn’t have crucial footage to show to the court. This kind of delay [between the CPS and the police] is all too common,’ he said.
Siobhain Egan from Lewis Nedas law firm said: ‘As a defence lawyer you notice that the CPS lawyers do not seem to look at their files until the day of the trial.
‘There is no prior review and so cases are going through the system that shouldn’t be. For example I have a client with bi-polar disorder who was being prosecuted for shop-lifting. That went to court, the judge took a look at the medical records and it got thrown out. If the CPS lawyers had reviewed their files they could have avoided the hassle,’ she explained.
Sunita Elliott is a criminal defence lawyer who often works at Woolwich Crown Court in South London. In February a trial she was working on almost felt apart when the Witness Care team failed to get two victims of a street robbery to the trial on the right day.
The lawyers and defendants turned up on the Monday to find the victims had not attended. All parties returned to the court each day until Friday when it was decided the trial would go ahead without the witnesses/victims.
Elliott’s client was pleading not-guilty and the judge decided to go ahead with the trial using the witnesses’ written statements only. As a result Elliott explained, she was unable to cross-examine the complainant, meaning she couldn’t perform her job in the way she would have wanted. Her client was found guilty of robbery and given a custodial sentence.
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