In defence of … the CPS

What?! What’s this all about – why are you defending them?

Well, somebody’s got to.

Less flippantly, this is all about an internal CPS email that got leaked. The full email, with commentary, is on the CBA Blog, but I’ve set out a bit below:

The way we worked this system at Isleworth and Harrow was as follows:

Tick-we would tick the cases that we didn’t want to do – ie messy ,troublesome cases with lots of complications. We also -would tend to tick the low earners – burglary, going equipped category E, F and H offences

Star * we would star the cases that we wanted to keep in-house so the higher earners – category B – robbery with a weapon, PWIT’s or category J – indecent images. We would also try and keep in house cases m here we could anticipate that they would end up cracking either because the evidence was weak and not likely to Improve or the witnesses were not going to turn up

So, what does this mean?

It all comes down to money. There’s a bit of background to some of the issues here. But, in essence, the way that people are paid for prosecuting cases bears no relation to the amount of work involved.

There is a ‘Manual of Guidance’ that has full details, if you are so inclined. But the payments table is here.

An example please?

One quick example can show the difference (these are based on actual cases that I have been involved with).

Case 1 – Shoplifting (ten quid’s worth of dogfood) – 7 pages of witness statements, 1 exhibit (the till receipt). The Defendant refused to be interviewed, so no other exhibits.

Preparation – almost negligible. On the day of trial, prosecution offer no evidence and everyone goes home at 11.30am.

Case 2 – Fraud of £25,000 – 30 pages of statements and 450 pages of exhibits (including a 30 page interview).

Preparation – lots. Admissions had to be drafted, the interview edited and jury bundles collated. And that’s for starters.

The trial proceeds and finishes in two days, in part because of the amount of preparatory work the lawyers had put in.

Payment – the amount of money the prosecutor would have got paid in both cases was the same – £480.

It is clear that the amount of work involved in those two cases is wildly different. This sort of difference is replicated throughout the Graduated Fee Scheme. One more example would be that if two cases are identical in terms of the amount of paperwork and both scheduled to take a day, but one is a fraud and one possession with intent to supply, then the latter case pays twice the amount of the former.

It doesn’t take a rocket scientist to see that if you were in charge of allocating the work between the ‘in-house’ team and the independent advocates, and had one eye on the budget, then you could manipulate this to your advantage. Hugely.

It’s important to note that whilst the exact payment terms are different for defence work, the principles are the same. Some cases ‘overpay’ greatly, others ‘underpay’.

So, in brief then?

What the CPS are saying is that they keep in-house those cases that generate the most money for the least amount of work (and remember that almost all of the PCMHs are kept in house – if you want to know how this much generates, have a look here).

It is fair to say that the CPS have disowned the email and say that this doesn’t reflect CPS policy, and no such scheme is operated anywhere in the CPS. It’s fair to say, also, that I don’t know anyone who believes that.

Are you happy with what they’re doing?

No, I’m not. Obviously I’m not as I’m on the receiving end of it. But it’s not just protectionism. I am certainly no fan of the CPS or the way they operate, but it is hard to see how, objectively, a system that operates like this can fulfill compliance with the Criminal Procedure Rules and the aim of having cases actively case managed before the PCMH as well as after.

Also, I am sceptical as to the CPS grading system. Does it work? As with QASA, there’s no evidence that it does, even if it is always followed by the CPS (which is not 100% clear). I, personally, don’t think that it works in the public interest (and it is this system that may be the bigger issue).

So why are you defending them?

Ultimately, what have the CPS done wrong? They have their own grading system which means someone can only do a case that they are competent to do (a bit like QASA). I think it’s nonsense, but the Bar has signed up to it, and so we should take it at face value (are you impressed that I’ve said that with a straight face?).

If the grading works, then all that the CPS are doing is running a sensible ‘business’, just as any defence solicitors firm would do. I’ve put business in inverted commas as clearly there is a public service element to it, but they are under budgetary constraints and as long as the grading system is sound, then this is inevitable. And on what we are told, those CPS advocates are only doing cases that they are competent to do. If it’s a Grade 2 case, does it matter if it’s done by a Grade 2 advocate who is in-house or self-employed?

I suppose that what I’m saying is that it is the system of payment, and the system of having in-house and external advocates, that is to blame. And you can’t blame the CPS for taking advantage of that.

The system the CPS (and defence solicitors) runs only works because there are people around to mop up the overspill. Without that, there would need to be far more advocates employed (or potentially a massive overhaul of the way the Crown Courts do business). The model requires taking the top X (say 70%) cases that pay the most and doing those, sending the others to be covered by freelance advocates (barristers in chambers and freelance HCAs). This is a great business model for them, but can only survive because there are people (almost all of whom are barristers in chambers) willing to take up the slack.

So, you’re saying it’s our fault?

Well, kind of. Don’t take it personally, but if there were no external advocates then the system would fall apart in a matter of weeks (if not days). But when the scheme came in, we didn’t do anything about it. Will we do anything now?

The consequences of the funding scheme was clear when it was introduced. And when it was being negotiated on our behalf by our trade union (the Bar Council).

As to the lessons to be learned, I’ll let the DPP himself have the last word (from the minutes of the Bar Council meeting last year) :

KSQC (Kier Starmer QC) questioned the efficacy of the governance procedures within the Bar Council which allow a working group to negotiate on behalf of the Bar, but which does not appear to represent its constituency. This is the second time since KSQC has been DPP that the CPS has worked with the Bar Council on a project, a compromise is found and then it all unravels at the end (the first example being the CPS Panels).

This was in relation to a different issue, but the DPP’s message is one worth heeding.

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4 thoughts on “In defence of … the CPS

  1. Pingback: Morning Round-Up: Tuesday 26 February | Legal Cheek

  2. Dan, very interesting article and spot on in what you say. Of course the caveat for CPS and Defence has to be that the advocate selected to do the job is competent to do it and the bar would argue that both CPS and Defence may have their judgment clouded by the money. However, assuming a competent advocate is selected then you cannot blame CPS/Defence behaving in this way. If I have a Committal for Sentence in one court and Guilty plea on Indictment in another then I know which one I am briefing out and as a taxpayer I know the one I would want the CPS to brief out.

    • Thanks Andrew. It’s an interesting (and divisive issue). Economically I completely understand it. With my self-employed barrister hat on, it’s not ideal for me, but if I was on the other side of the fence, I would do the same.

      A couple of quick thoughts (I could talk about this for hours!):

      (1) The thing that surprises me is that as many cases are briefed out to barristers as they are. Given that self-employed HCAs are entitled to agree referral fees, I can’t see much of a role for the Bar in 95% or more of cases. It’s a tribute to solicitors that they are still briefing the Bar at all, and an indication that defence solicitors are not purely motivated by money.

      (2) The difficulty is how to assess competence. I don’t know what your views on QASA are, but I don’t think that it is going to work (the CPS scheme does not particularly inspire confidence). The argument between in-house and external will carry on until that is resolved. And I think that that argument is one that will never be resolved.

      (3) Personally however, I cannot see how the independent bar can survive given the finances. Whether fusion is a good or a bad thing is another matter, but I don’t think that the combination of Higher Rights for solicitors, Carter and Employed Barristers having rights of audience (again, whether these things are right or not) is something the bar can survive – it undermines the fundamental basis which the bar operated under – the idea of two branches of the profession having separate spheres of influence where there was internal competition in both spheres.

      Any views?

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