Clause 58
Criminal Justice and Immigration Bill
3:15 pm
David Burrowes (Shadow Minister, Justice; Enfield, Southgate, Conservative)
The clause is significant, dealing as it does with matters of principle and application relating to how we view the magistrates court and whether we wish it to have the independence and provide the quality of justice that all parties involved in the justice system—be it the defendant, the prosecutor or the victim—would regard as important.
I would like to begin by dealing with those who do not support the clause. First, the Magistrates Association said in evidence to this Committee that it strongly opposes the proposal, regarding it as a downgrading of the magistrates court. The association understands that the Crown Prosecution Service does not favour the proposal, either. It would be interesting to hear from the Minister whether that is the case.
The concern is that there will be an extension of the ability of non-legally qualified staff to conduct trials in magistrates courts; proceedings in magistrates courts in relation to certain offences that were previously excluded from their remit, including serious cases triable on indictment where the accused has elected to be tried by jury or where the court has found that they should be tried by jury; applications for preventative civil orders, and certain proceedings assigned to the Director of Public Prosecutions by the Attorney-General under the Prosecution of Offences Act 1985.
In essence, the clause proposes that “not guilty” trials, including trials for serious offences punishable by imprisonment, such as assaults, public order, thefts, including shoplifting, and driving offences, where defendants have chosen to be heard in front of the magistrates court rather than the Crown court, should be conducted by non-legally qualified Crown Prosecution Service staff. The effect of this proposal will be to extend significantly the role of designated caseworkers beyond the area in which they are currently involved.
I concede that there has already been an extension of the role of caseworkers. The Narey report in 1997 recommended that
“Non-lawyers employed by the CPS should be able to present uncontested cases in magistrates courts”.
That recommendation was followed through and we now see regularly in magistrates courts caseworkers conducting straightforward, simple pleas and other less serious matters. However, the clause seeks to extend widely the ambit of those caseworkers. The concern is that that will inevitably lead to a reduction in the legal input in criminal proceedings. Trials of some serious offences could well be heard by lay magistrates without a legally qualified representative for either the defence or the prosecution.
The concern is that, given that designated caseworkers are not necessarily solicitors, barristers or legal executives, they are not subject to professional codes of conduct, nor are they required to fulfil the important duties to the court that those legal professionals fulfil. In addition, as officers of the court, those professionals have that vital independence that the designated caseworkers do not.
This is not a call for closed shops for solicitors, barristers or legal executives themselves, and it should not be seen in that light. It should be seen as an important defence of the principle of high-quality justice in magistrates courts. The caseworker’s role was recognised as limited and restricted by the Crown Prosecution Service in its annual report, and in debates in this and another place during the passage of the Crime and Disorder Act 1998. Then, Lord Meston reminded peers:
“The Royal Commission report which led to the introduction of the Crown Prosecution Service proposed that it should be set up in such a way as to recognise the importance of independent legal expertise in the decision to prosecute and to make the conduct of the prosecution the responsibility of someone who is legally qualified.”
He continued, and made the point clearly:
“The decision whether to commence or to continue criminal proceedings involves considerable responsibility, with implications for defendants, victims and the courts. Uncontested criminal proceedings in the magistrates’ courts are not necessarily trivial or straightforward...the liberty of the individual can be at risk”.
That is the concern about the clause. We are dealing with the liberty of the individual and with cases that victims want properly prosecuted, and the concern is that justice is being short-changed.
The criticism, quite rightly, is that the clause reveals a desire to get justice on the cheap. Where is the evidence that we need the extension? It seems to be based on financial reasons. The Government said that they intend to achieve
“maximum flexibility to allow optimisation of staff deployment across the courts”,
and
“to improve the case-building process with lawyers focused on sensitive, complex casework”.
That is management-speak. The Government talk about employment issues and the organisation of staff deployment; there is nothing about justice, or the importance of independent expertise when dealing with cases that involve the liberty of the individual, or properly prosecuting important cases for victims.
The measure seems to be a cost-cutting exercise that will inevitably result in a loss of confidence in the criminal justice system. There will be a greater risk of error, which in this context could mean a poorly contested or prosecuted case, to the detriment of victims and wider society. That would have a profound impact. I say cost-cutting exercise but there is no evidence of cost savings. It would be interesting to hear from the Minister whether any such evidence exists, because the results of a poorly prosecuted case could mean longer and more expensive trials in which there is no legal expertise to deal with matters appropriately and expeditiously. It might also lead to more appeals and increased court and knock-on costs.
The concern is also about the principle of equality of arms in the court process. The principle is applied in the European convention on human rights, article 6, on fair trials. Inherent in that is equality of arms when dealing with criminal justice issues. The clause may result in inequality of arms, however, with a defendant represented by a fully qualified barrister or solicitor of great experience and expertise, while the Crown’s case, representing the victim but on behalf of the Crown, is represented by a designated caseworker.
There are many fine designated caseworkers. I know and see them in Enfield magistrates court, and they do a fine job in Narey courts, proceeding with less serious cases. However, when they have to decide whether to continue with a prosecution, when there is complexity, or when there are issues about bail, they must defer to a Crown Prosecution Service lawyer who will reach a decision using their expertise, their duties to the court and their training, which has been gained not over weeks, but over years, to ensure that justice is properly served.
I do not wish to bang the drum on behalf of the Bar Council, the Law Society or the Institute of Legal Executives. I do wish to bang the drum for the victim sitting at the back of a court or a member of the public watching a court process. If they see someone who is no doubt doing the best that they can but find out that that person does not have the same qualification or experience, and is at a different level of expertise from the lawyer representing the defence, even if there is no determination about the legal niceties of equality of arms, surely they will feel that justice is not being done and that justice is going cheap. The Minister needs to tell us why the provision is necessary, referring not just to cost savings but to why it is needed as a matter of principle, considering the liberty of the individual and the proper prosecution of cases on behalf of the victim and society.
Where was the support in the consultation with interested organisations? The Magistrates Association does not support it, and nor do the Law Society, the Bar Council, ILEX or the Crown Prosecution Service. It is important to find out. In The Times on 16 July, it was noted that the Director of Public Prosecutions had
“insisted that he could not imagine any situation in which the case workers would be entrusted to handle cases where a defendant might go to jail.”
That will now be a reality. Has the DPP’s view changed, and, if so, why?