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THE INSPECTORATE’S REPORT ON
CONTENTS
PREFACE
Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) was established as an independent statutory body by the Crown Prosecution Service Inspectorate Act 2000, which came into effect on 1 October 2000. Previously, the Inspectorate had been a unit within the Crown Prosecution Service (CPS) Headquarters. The Chief Inspector is appointed by and reports to the Attorney General.
HMCPSI’s role is to promote the efficiency and effectiveness of the CPS through a process of inspection and evaluation: the provision of advice, and the identification and promotion of good practice. It achieves this primarily through an Area inspection programme operating a two-year cycle, during which it visits and publishes reports on each of the 42 CPS Areas, and the Casework and Policy Directorates at CPS Headquarters. It also maintains a programme of thematic reviews, and each year conducts a number of inspections jointly with other criminal justice inspectorates.
Although the inspection process focuses mainly on the quality of casework decision making and casework handling, the Inspectorate also looks at matters that work to support the casework process. Business management inspectors are specialists in the fields of management, human and financial resources, and corporate planning. They examine aspects of the Areas’ performance based on themes relating to management and operations. These are in addition to the more casework-orientated themes that are examined by legal inspectors.
HMCPSI also invites suitably informed members of the public, nominated by national organisations to join the inspection process as lay inspectors. These inspectors are unpaid volunteers who examine the way in which the CPS relates to the public through its dealings with victims and witnesses, its external communication and liaison, its handling of complaints and its applications of the public interest test, contained in the Code for Crown Prosecutors.
HMCPSI has offices in London and York. The London office has two groups, which undertake Area inspections in the Midlands and Wales, and in Southern England. The group based in York undertakes Area inspections of Northern England. Both offices undertake thematic reviews and joint inspections with other criminal justice inspectorates. At any given time, HMCPSI is likely to be conducting six Area inspections and two thematic reviews, as well as joint inspections with the other criminal justice inspectorates.
The Inspectorate’s reports commend high quality work, identify good practice and make suggestions and recommendations about where CPS performance needs to be improved. The distinction between recommendations and suggestions lies in the degree of priority that HMCPSI considers should be attached to the proposals, with those matters meriting highest priority forming the basis of recommendations.
INTRODUCTION
1.1 This is HMCPSI’s report about CPS Avon and Somerset, which serves the area covered by the Avon and Somerset Constabulary. The Area has two offices, at Bristol and Taunton.
1.2 In 1986, when the CPS was established, CPS Avon and Somerset was one Area. When the CPS was reorganised in 1993 from 31 to 13 Areas, it became part of CPS South West. Following the latest reorganisation of the CPS in April 1999, Avon and Somerset again became a CPS Area in its own right. The 1999 reorganisation created 42 CPS Areas co-terminous with police areas, each headed by its own Chief Crown Prosecutor (CCP) enjoying a high degree of autonomy and working to the Director of Public Prosecutions (DPP) within a framework document.
1.3 On 31 May 2002, the Area employed the equivalent of 141.5 full time staff, including the Chief Crown Prosecutor; the Area Business Manager (ABM); 57.2 lawyers; five designated caseworkers (DCWs) and 77.3 caseworkers and administrative staff.
Staffing and structure
1.4 The Area’s current structure dates from 1999 when it re-organised on a functional rather than geographical basis, each of the two offices being divided into two Units; one to deal with magistrates’ court work and the other to deal with Crown Court cases. These are called Criminal Justice Units (CJUs) and Trials Units (TUs). One TU is located in Bristol, together with the Area Secretariat and Case Information Unit (CIU). The Northern CJU is located in adjacent Bridewell police premises as part of the Glidewell initiative. The other TU and Combined Head of Unit are located in CPS offices in Taunton and the Southern CJU is located at Shuttern police premises locally.
1.5 The Area Secretariat comprises the CCP, ABM and six other members of staff. The CIU has six members of staff.
1.6 The TU and CJU in Bristol are managed by level E Heads of Unit. There are two TU teams and three CJU teams run by level D Team Leaders. The CJU has very recently been split from two into three teams: Bristol A which deals with cases in the North Avon magistrates’ courts, Bristol B which covers Bristol Magistrates’ Court work and Bristol C which handles all youth offender and child witness cases for the Northern CJU. Youth work had previously been handled by specialist staff within one of the existing teams.
1.7 In Taunton there is one level E Combined Head of Unit who manages the Southern CJU and TU, and one Team Leader reporting to him who runs the Southern CJU. The Heads of Unit, SCL and ABM report to the CCP.
CPS PERFORMANCE MEASURES NationalTarget Outcome^ National Target^ Area Outcome^ Area
Objective: To deal with prosecution cases in a timely and efficient manner in partnership with other agencies
2001-2002 Apr 2001 – Mar 2002
2001-2002 Apr 2001 – Mar 2002
Committal papers sent to defence within agreed time guidelines
78% 85.5% 70% 79.6%
Briefs delivered to counsel within agreed time guidelines 82% 83.3% 88% 88.6%
Objective: To ensure that the charges proceeded with are appropriate to the evidence and to the seriousness of the offending by the consistent, fair and independent review in accordance with the Code for Crown Prosecutors
2001-2002 Apr 2001 – Mar 2002
2001-2002 Apr 2001 – Mar 2002
Cases dismissed on a submission of no case to answer attributable to failures in the review process (self assessment by CPS)
0.008% 0.011% 0.001% 0.003%
Non-jury acquittals in the Crown Court which are attributable to failures in the review process (self assessment by CPS)
0.6% 0.5% 0.8% 0.8%
Inspection Cycle 2000-
This Inspection
Prosecution decisions examined during inspection by HMCPSI complying with the evidential test set out in the Code for Crown Prosecutors (random sample)
AA 98.3%* 96.6%**
Prosecution decisions examined during inspection by HMCPSI complying with the public interest test set out in the Code for Crown Prosecutors (random sample)
AA 99.8%* 98.3%**
Advices given to the police and examined during inspection by HMCPSI complying with the tests set out in the Code for Crown Prosecutors
AA 96.1%* 94.4%*
Decisions to discontinue examined during inspection by HMCPSI complying with the tests set out in the Code for Crown Prosecutors
AA 93.2%* 78.2%**
Cases in the adverse sample examined during inspection by HMCPSI, where the outcome was foreseeable, but no remedial action was taken
BB 19.61%* 52.8%**
Objective: To enable the court to reach just decisions by fairly, thoroughly and firmly presenting prosecution cases, rigorously testing defence cases and scrupulously complying with the duties of disclosure
Inspection Cycle 2000-
This Inspection
Advocates who perform significantly above the normal CPS standards of advocacy, as assessed by HMCPSI
7% 4.13%* 4.16%**
Advocates who fail to meet the CPS standards of advocacy, as assessed by HMCPSI
CC 1.71%* 0%**
Cases where the prosecution has properly discharged its statutory duties regarding primary disclosure
AA 74.64%* 73.9%**
Cases where the prosecution has properly discharged its statutory duties regarding secondary disclosure
AA 64.12%* 68.7%**
Objective: To meet the needs of victims and witnesses in the CJS, in co-operation with other agencies
2001-2002 Apr 2001 – Mar 2002
2001-2002 Apr 2001 – Mar 2002
Witness expenses paid within 10 days 100% 98.3% 100% 98.5%
Complaints replied to within 10 days 93% 90.7% 93% 97.5% Improving productivity
Undisputed invoices paid within terms or 30 days 100% 94.4% 100% 99.7%***
Reduce sickness absence rate per member of staff 8.5 days by 30/3/
Not available
8.5 days by Dec 2001
Not available
Citizens charter commitment
MPs’ correspondence replied to within 15 days 100% 90.6% 100% 100%
- Average performance of Areas inspected in inspection cycle 2000-2002 based on a sample of cases examined and observations at court. ** Area performance based on sample of cases examined and observations at court in this inspection. *** Performance of service centre and not specific to the Area. AA The CPS constantly seeks to improve its performance and to increase the percentage of these cases, but set no targets for 2000-2001. BB The CPS undertakes self assessment (see above) of such cases which are attributable to failures in the review process. CC The CPS formerly had a target of less than 2.5% and the performance has been collated by HMCPSI throughout the inspection cycle.
CJS PERFORMANCE MEASURES (shared between Home Office, Lord Chancellor’s Dept and CPS)
National Target
National Outcome Area Target^
Area Outcome Quarter ending 31 Mar 02
Quarter ending 31 Mar 02 Youth Justice
To halve the time from arrest to sentence for persistent young offenders from 142 days to 71 days by 31 March 2002
71 68 71 91
1.13 The CPS does not have targets in relation to conviction rates. The information is collected and we set it out for comparison purposes.
CPS Avon and Somerset outcome 2000-
National outcome 2000-
Conviction rate in the magistrates’ courts 98% 98.3% Conviction rates in the Crown Court 89.7% 88.8%
The percentage is of total caseload; convictions include cases proved in absence and guilty pleas.
1.21 The Area is involved in a number of other initiatives, some voluntary and some mandatory. Here in particular there is a need to plan, evaluate and review in order that the quality of core business of the Area’s casework is enhanced.
Structure of the report
1.22 Our scrutiny of casework focuses on four main themes: provision of pre-charge advice; the review of cases; case preparation; and case presentation. Chapters 2 to 5 examine each of those issues. We set out in relation to each of them what we were looking for and our findings. Chapter 6 looks at management and operational issues.
PROVIDING ADVICE
Introduction
2.1 Our inspection was concerned primarily with the quality and timeliness of the advice provided. We also examined the arrangements between the CPS and the police for ensuring that the right cases are being submitted for advice and that advice informally given is properly recorded. It is important that CPS resources are focused on those cases that most require them. Care is needed to prevent excessive caution, or other factors leading to the submission of cases where the police should properly make the decision without assistance. Conversely, the police should be encouraged to seek assistance in those cases where legal or evidential issues arise at an early stage and may influence the later handling of the case. Sometimes it may be appropriate to bring in counsel at an earlier stage than normal.
2.2 The performance indicators for the Area show that, in the year ending 31 March 2002, pre-charge advice was provided in 599 cases, which represents 2% of the Area’s caseload, compared with a national average of 3.3%.
Quality of advice
2.3 The Code tests had been properly applied in 17 of the 18 cases examined (94.4%). In one case concerning an allegation of theft from employer, the correct offence of false accounting was not identified.
2.4 In most cases, the advice was well reasoned, comprehensive and typed. Police representatives considered that the quality of advice was very good, particularly in cases involving serious offences, where a lawyer is usually allocated at an early stage.
Timeliness of advice
2.5 The CPS nationally has agreed with the police a time guideline of 14 days for dealing with requests for advice from receipt of an adequate file. We found that advice was provided in a timely manner in six of the 18 files examined (33.3%). One case in the file sample was returned to the police the next day, but the average response time was approximately four weeks. This was reflected in the Area’s advice logs.
2.6 The police did not raise any concerns about the timeliness of advice, and indeed noted that advice was provided promptly in most serious cases. We found inconsistency across the Area for monitoring timeliness, referred to below.
2.7 We recommend that Heads of Unit ensure that advice is provided to the police within 14 days (in all save the most substantial cases).
Allocation and monitoring
2.8 In Taunton, the Team Leader of the Southern CJU receives all advice cases, and allocates to lawyers on the basis of workloads and experience or to nominated specialists if it is a sensitive case. Those cases that are likely to be dealt at the Crown Court are sent direct to the TU. The allocated lawyer usually retains the case if the defendant is subsequently charged. A similar system operates in Bristol.
2.15 The initiative has been introduced at two police stations in Bristol and one at Bath and involves certain serious offences where a suspect has been arrested, interviewed and bailed to return to the police station, and a not guilty plea is expected. Senior Crown Prosecutors attend the police stations on a daily rota basis and provide advice to police officers, sometimes in conference, regarding the strength of the evidence and appropriate charges. They draft the charges where necessary. The scheme is compulsory for certain identified offences and voluntary for others although the Area has plans to agree a further protocol with the police, which will provide for compulsory referrals in all cases.
2.16 The aim is to identify the prosecution team early, and where a suspect is charged, cases should be allocated to the original lawyer who provided the advice. There was no evidence of a system to ensure that this was the case, and it was not always possible to identify the advising lawyer. Area managers will want to ensure continuity of case handling.
2.17 We were informed that the pilot has been popular in Bath, but less so in Bristol. The scheme is resource-intensive, involving the attendance of 15 lawyers from both the CJU and TU each week. The Units are not located at the operational police stations concerned. Some lawyers and police officers were enthusiastic about the scheme, recognising the potential long-term benefits. However, concern was expressed regarding the potential delay caused to cases whilst advice was sought from lawyers. As lawyers are available at the police station under the scheme, we consider that officers will be justified in arranging shorter bail periods, so that advice can be obtained quickly and cases can proceed without delay. Another concern at the time of our inspection was the effect on maintaining case preparation and court advocacy, particularly in light of the low take-up rate in relation to discretionary cases.
2.18 We have since been informed that the use of the scheme has increased dramatically in Bristol, following a recent liaison meeting between senior CPS managers and divisional commanders in Bristol. Both agencies have agreed that police officers will refer all cases where a suspect is held in custody to the lawyer on duty at the police station, to advise on evidential matters and the appropriate charge. We are pleased to note the expanding use of the pilot. It was too early in the scheme for us to assess the outcomes and benefits, and these issues will require careful consideration at the evaluation stage.
Advice from counsel
2.19 It is rare for advice to be sought from counsel prior to charge, other than in some complex cases that are dealt with by the National Crime Squad. We saw no examples in the file sample, or where it would have been appropriate to do so. The Area has a number of experienced lawyers who have sufficient expertise to handle most complex cases. Some counsel told us that they were occasionally instructed to prosecute cases that would have benefited from their earlier involvement.
REVIEWING CASES
Introduction
3.1 We examined the quality and timeliness of the decision-making at various stages in the progress of the cases within our file sample and some that featured in our onsite observations. Prosecutors are required to take all such decisions in accordance with the principles set out in the Code for Crown Prosecutors (the Code) promulgated by the DPP under section 10, Prosecution of Offences Act 1985. The most fundamental aspect of the Code is the twin criteria for the institution or continuation of proceedings: first, there must be sufficient evidence to afford a realistic prospect of conviction; secondly, the circumstances must be such that a prosecution would be in the public interest. Apart from the Code, there is also specific guidance relating to other issues such as mode of trial.
3.2 The decision whether to institute proceedings, other than in exceptional circumstances or those falling within agreed provisions of the Charging Pilot scheme referred to in paragraphs 2.14 to 2.18, rests with police, albeit they may seek advice from the CPS before taking the decision. Following the institution of proceedings, the police submit a file to the CPS that should be subject to initial review to see whether it should be accepted for prosecution. In some cases, this may lead to a decision to terminate the proceedings at the outset. Where a case proceeds, it must be subject to continuous review. The initial assessment may have an element of provisionality about it, especially if it occurs before the police have concluded and submitted the report of an investigation; the evidential position or surrounding circumstances may change during the life of any case and the CPS must respond quickly and positively to review the case again and reassess it.
3.3 Our file sample covered the full range of cases, but focused especially on certain categories of cases that consistently attract a high degree of public concern (eg. discontinued cases) or those that have proved problematic and may hold important information about the quality of decision-making. We usually refer to the latter as adverse cases. They fall into four broad categories, namely cases:
discharged by magistrates following consideration of evidence and a ruling that it is insufficient to justify committal to the Crown Court;
where all charges are dismissed by magistrates on the basis that there is no case to answer at the conclusion of the prosecution case;
where a trial judge at the Crown Court orders that an acquittal should be entered following a decision by the prosecution prior to the empanelling of a jury that the case should not proceed. These are called judge ordered acquittals (JOAs); and
where a trial judge in Crown Court proceedings rules, following the commencement of the evidence, that it is insufficient for the Crown to proceed and directs the jury to acquit. These are called judge directed acquittals (JDAs).
files are only received on the morning of court. If experienced lawyers find this is the case (although we observed only small lists of new cases in outlying courts), then managers need to address with the police the current agreement with them regarding the delivery of files. The system in Taunton allows time to work on files before the first court appearance and for the allocated lawyer to prosecute that case in court.We found the quality of initial review to be consistently higher. The opportunity needs to be seized to conduct a meaningful review of the available evidence at the initial stage so that cases do not drift to summary trial or committal preparation without issues being addressed.
Continuing review
3.10 The quality of continuing review was variable, even though the time available under local listing practices should be adequate in relation to summary trial and committal files. The factors that contribute to the variation are:
the late submission of police files, discussed under joint performance management (JPM), which affects the time available for further review;
lawyers do not always endorse the review adequately or, indeed at all, and this raises the question as to whether issues have been addressed;
late file allocation detracts from file ownership and getting an early grip on files; and
poor court endorsements by some lawyers may mean necessary actions are not undertaken.
3.11 Effectiveness of review is reflected in the case results. The magistrates’ court acquittals in our sample showed examples of ineffective reviews; for instance not seeking to expand upon existing evidence, not reviewing upon receipt of further evidence or not adequately addressing reliability and credibility of witnesses. In addition to the above, Crown Court acquittals showed some indecision as to the appropriate charge(s), although overall review at or post committal was more effective.
3.12 Until very recently the Area has not had formalised assurance systems in place to monitor the quality of review, nor have these been underpinned in the performance appraisal system. A Management Check Framework Document has now been introduced and needs to be applied consistently.
3.13 We recommend that formal assurance systems of casework review are applied consistently by Heads of Unit and supported in the performance appraisal system.
Selection of the appropriate charge
3.14 The CPS and the police nationally have agreed charging standards for assaults, public order offences and some driving offences. In our random sample the police had correctly applied the appropriate charging standard in 17 of the 22 relevant cases (77%). Four of the other five cases were assaults. Two were correctly reduced to common assault but belatedly (one only after committal review) and in the other two no action was taken to amend the charge. The fifth case was allowed to proceed past committal as dangerous driving albeit identified at review as careless driving.
3.15 The numbers of cases in our sample where charges accepted or advised by CPS required amendment, and the timeliness of those amendments, were disappointing. Fourteen out of 36 applicable cases (39%) required amendment. Five out of thirteen (38%), where timeliness could be ascertained, were timely. Amendment was in fact made in only 62.5% of the identified cases and the Area will want to improve upon this.
3.16 Whilst there will always be a proportion of cases where pleas to the original or lesser charges are not made by the defence until the day of trial, magistrates expressed concern that decision-making about acceptable pleas and therefore level of charge, particularly on assault and public order cases, comes too late.
3.17 There was concern among TU lawyers about the need to reduce charges on committal review which were not appropriate to be committed. This was reflected in our findings on the number of inappropriate applications of the mode of trial guidelines. This difference of approach between TU and CJU lawyers in assault and public order cases in particular, needs to be addressed. The appropriate application of charging standards and charge selection generally will be helped by familiarity with both magistrates’ and Crown Court work, and may be addressed by appropriate rotation between Units and training. The Charging Pilot may have an impact on charge selection in due course, albeit primarily concerned with types of offence which are more likely to be destined for the Crown Court.
Mode of trial
3.18 In our sample, mode of trial guidelines were applied correctly in 24 out of 33 relevant cases (73%). This is lower than found elsewhere. In view of this comparatively high number of incorrect decisions, it may be appropriate for lawyers to detail the reasons and factors taken into account.
3.19 We recommend that prosecutors select the appropriate charge at the earliest opportunity, and apply the mode of trial guidelines correctly, and that training is provided to assist in this.
Bail
3.20 In our sample, prosecutors made the correct decision about whether it was appropriate to apply for a remand in custody in all of the relevant cases. The grounds for opposing bail or reasons for the court remanding the defendant in custody were recorded in six out of eight relevant cases. Bail conditions were recorded in 20 out of 24 cases.
Reasons for discontinuance
3.28 The reasons for discontinuance are set out in the table below:
REASON NO. OF CASES PERCENTAGE Insufficient evidence Inadmissible evidence breach of PACE Inadmissible evidence – other reasons Unreliable confession Conflict of evidence 4 4. Legal element missing 17 18. Unreliable witnesses 1 1. Identification unreliable 10 10. 32 34. Public Interest Effect on victim’s physical health Defendant elderly or suffering significant ill health 2 2. Genuine mistake or misunderstanding 1 1. Loss/harm minor and one incident 7 7. Loss/harm put right 5 5. Long delay between the offence and date of charge or trial Very small or nominal penalty likely 11 11. Informer or other PII issues Caution more suitable 8 8. Youth offender 34 37 Unable to proceed Case not ready/adjournment refused 2 2. Offence taken into consideration 1 1. Victim refuses to give evidence or retracts 11 11. Other civilian witness refuses to give evidence or retracts 2 2. Victim fails to attend unexpectedly 1 1. Other civilian witness fails to attend unexpectedly 17 18.
Documents produced at court 1 1.
Reasons not known 8 8.
TOTAL 92 100
3.29 Eight cases were discontinued for unknown reasons and this is consistent with our finding of lack of endorsement of what has taken place with regard to discontinuance, the decision made and the reasons for it.
3.30 Seventeen cases were discontinued because a legal element was missing. We found several examples where these problems could have been identified at a much earlier stage with effective initial review and proper consideration of the issues involved.
3.31 Ten cases were discontinued because of problems with identification. In three of these the victim was asked to pick out the defendant after they had been stopped near the scene. The police had not offered identification parades to any of these defendants. This point was raised with police at the initial review stage, however parades were not arranged or it was too late for them to be held. The Area may wish to consider offering training to the police on identification to complement the introduction of the new video identification procedure.
3.32 Proportionately the Taunton office discontinued a higher number of cases on public interest grounds than the Bristol office. Albeit the public interest ground relied on was not always apparent from the file, in both offices the main reason for public interest discontinuance was that the defendant faced sentences on more serious charges and was therefore likely to receive a small or nominal penalty. The police should be encouraged to include information any other matters that may affect sentencing on the file so that the appropriate decision about proceeding can be made as soon as possible.
3.33 It is encouraging that there were few examples of cases being dropped because witnesses failed to attend. However, a significant number of cases did not proceed because the victim refused to give evidence or retracted. The majority of these were domestic violence cases where the victim had withdrawn the allegation. Most were dealt with appropriately but in one case there was no indication that consideration had been given to continuing with the prosecution despite photographic and independent evidence.
3.34 We recommend that Heads of Unit ensure that full effect is given to the Management Checks Framework Document and File Endorsement Standard in relation to discontinuance and reflect their requirements in the appraisal system.
Quality of the decision to discontinue
3.35 We examined 23 cases in more detail to determine whether the Code tests had been applied correctly in deciding not to proceed. We found this to be so in 18 of the cases. In two cases the evidential code was not applied correctly. In three cases the public interest test was not applied correctly, including one case where the police disagreed the decision to discontinue on public interest grounds and which caused particular concern as another defendant who had played a far smaller part in the incident had pleaded guilty and been sentenced, creating clear disparity and unfairness.
3.36 We saw examples of inadequate initial reviews which delayed the resolution of the case compounded by lack of case ownership. There were some inaccurate discontinuance letters and absence of notices from files, and poor file endorsement of actions taken and results. We considered that had pre-charge advice been sought and given in some of these cases the need to discontinue could have been avoided.
