At this stage, I remind colleagues of the previous comment I made about straying outside the remit of the Committee, despite what is going on outside.
You have taken my first six questions away, Chair, but I will persevere. Mr Starmer, clause 12 of the Bill, which was a surprise to some of us when it arrived, allows the Lord Chancellor to apply a means and merits test and possibly other tests as well to the provision of legal advice on arrest. We understand that the Minister has said that there are no plans to use that, but the fact is that the measure will be in the Bill if it is enacted. Do you have any concerns about clause 12 and the possible uses of it?
Keir Starmer: I obviously have an overall concern to ensure that the requirements of a fair trial are complied with. They stretch back to the point of arrest. But the operation of clause 12 is probably something better put to the Ministry of Justice or the Legal Services Commission. My concern is that there should be fairness in the proceedings and that whatever is necessary should be put in place to that effect.
Obviously, what is of concern to us—you might or might not want to comment on this—is that you will have situations going back to pre-PACE, less enlightened times where individuals charged with offences that are serious or at least of consequence to them will not have the benefit of legal advice on arrest. Is that something that gives you concern?
Keir Starmer: I would rather not get into the detail of that because that is for others. But, as a matter of principle, I am concerned that there should be full, fair trial rights afforded to all those in criminal proceedings, and that stretches back to the point of arrest. I do have that concern, but the detail is for other people.
I shall ask you another point of principle and then I will leave you to my colleagues and perhaps come back if there is time. Part 1 of the Bill deals with very significant scope changes to legal aid. The impact assessment to the Bill concedes that that will be detrimental to social cohesion and is likely to increase crime. As you probably heard in our last session, it will also mean that victims can be cross-examined by perpetrators without the benefit of representation. Have you looked at the scope changes and do you have any concerns from your point of view?
Keir Starmer: I am afraid the honest answer to that is that the extent to which I have looked at the provisions that do not directly impact on me or the CPS is limited. I obviously listened to the questions and answers that were just given and I know the general provisions and concerns of the debate that is going on, but I will not pretend that I have tried to delve into the detail of predominantly civil issues that do not directly affect me or the CPS.
One more question if I may. There is quite a significant increase in out-of-court disposals in the Bill. We heard interesting evidence this morning of a substantial variation between police areas as to the percentage. That can vary between 33% and 66% of criminal offences being dealt with, and at least one chief constable has said that they thought only 20% of offences should get into court. Do you have any concerns in relation to that, whether there may be a move away from judicial towards administrative determination?
Keir Starmer: I think that out-of-court disposals, if that is the right description, have an important part to play in criminal proceedings. They are invaluable for first-time offenders and young offenders and, properly used, they are an important part of our criminal justice system. The difficulty, as I see it, is where they are used inconsistently. There is evidence in various reports of that. That is why I have long argued that they should be part of our system, but that there should be a coherent, consistent scheme, and a stepped scheme, for out-of-court disposals. What I have in mind is a scheme that provides this level of disposal for this type of criminality, this disposal for the next level of criminality, etc., until there is a clear threshold for cases then going into court.
My own preference is to set the threshold according to the criminal conduct, not according to the statistics. In other words, I do not seek to argue that x% ought to go into court, or stay out of court. I would seek to argue that above a certain level of criminality, save in exceptional cases, the case ought to go to court. That is precisely the guidance that I put in place for the area of out-of-court disposals that I am predominantly responsible for, conditional cautions, so that when it gets to a certain level of violence, the case becomes ineligible for an out-of-court disposal and must go to court. My own view is that it is not helpful to say that 25% ought to go to court, or should not go to court. It is actually, what is the threshold?
Welcome to the Committee. The previous witness from the Law Society put together an alternative funding package, saying that a lot of the measures in the Bill would not be necessary because we could raise money elsewhere to find savings or funding. The biggest chunk of their proposals—£79 million—was that the CPS, which you are responsible for, should pay for all judge-directed acquittals and dropped prosecutions at court. What is your view of that, and if you did have to find £79 million, what would you have to do vis-à-vis your administration of justice?
Keir Starmer: I did not hear that, but I would quarrel with it. I have seen it in the figures. The problem with their analysis is that the number of cases that have failed that are attributable to the prosecution is x%. Within that, are all the cases where the prosecution witness does not turn up. We run quite extensive witness care units. We do our level best to get witnesses to court, but where they do not turn up, to then say the prosecution must pay the cost is, in our view, unfair and counter to the way in which criminal justice ought to be administered. I am all for driving out inefficiencies in the criminal justice system, and within our organisation. I do not think that particular proposal achieves that end. All that will happen, because costs are paid out of central funds at the moment, is moving it between one pot and another. It would be better to require me to improve performance across the board, and that is a challenge that I take up and what I am endeavouring to do.
The Government are proposing to change the way bail operates and replace the long list of reasons that magistrates and judges can use to remand people to prison with a no prospects test. I am sure you have thought about how you are going to advise the courts. Could you tell us how you plan to advise them on these issues and what you think the impact of the provision might be?
Keir Starmer: I understand the rationale behind the provision. When it was first suggested, we had a number of concerns, because the purpose of the bail regime is to prevent offending, prevent interference with witnesses and ensure people attend at court. The first two of these are important. We were particularly concerned about situations, such as domestic violence, where it is sometimes important to use the bail provisions to deal with them. To some extent, the way in which it is now presented has allayed the fears that we had in relation to that, because there are now provisions, as you will know, in relation to the likelihood of offences, essentially within the domestic setting. Where we had a concern it has now broadly been dealt with.
There are other concerns, such as the court having to go through a mini-sentencing exercise at the outset to assess what sentence it might impose. That is a concern that, frankly, I think we and the courts will rise to and meet. Some low-level concerns remain but nothing in principle.
If you think that is a low-level issue, what do you think the impact will be on attendance at court, and if you think that the level of non-attendance will increase, are you content for people to be tried in absentia?
Keir Starmer: You could be arrested for breach of bail and brought to court and that ought to be the first option if somebody does not turn up. I would much prefer that to trial in absentia. Beyond that, I have not seen any evidence to suggest that this is going to lead to a number of people not attending at court.
Keir Starmer: No, I do not think that is necessarily right. The scheme is to deal with the three purposes that I have suggested. Where it is low-level offending, and unlikely realistically to have a custodial sentence, in the vast majority of cases those people will be on bail under the current system in any event. We are talking about very small numbers. Of far greater concern to us was the issue of offending while on bail, in the particular circumstances that I have described, and that has been mitigated by the Bill.
Mr Starmer, you have dealt with the question of the costs element. Can you clarify for me that there is, in fact, already a provision, which has been around for many years, for wasted costs to be paid where there has been improper, negligent or unreasonable behaviour on the part of the prosecution?
Thank you. May I move on to the part of the Bill that I know you have been paying close attention to, in particular clause 54, “Duty to give reasons for and to explain the effect of sentence”. It may not be apparent to every member of the Committee, but the CPS does have a role, and exercises this role very diligently, in writing to victims of crime to inform them about the outcome of cases. In particularly serious cases, there will even be meetings with victims of crime to discuss with them any concerns they may have. What is your view about the potential impact of proposed new section 174? Do you think it will make the job of caseworkers and CPS lawyers easier in putting together letters explaining sentences to victims of crime?
Keir Starmer: Yes, I do and we welcome it. Anything that clarifies the process in court and simplifies it so that people can understand it is to be welcomed. It seems to me that if the steps that are set out are gone through by the court it makes it much easier for those in court, and those who have to be informed afterwards, to know what has gone on.
I should like to ask about the Government’s proposed new offence in relation to knife crime. As a prosecutor, have you seen the need for this new offence to be created? This is in relation to an offence of threatening with an offensive weapon or an article with a blade or point and creating a risk of serious physical harm.
Keir Starmer: The position as far as I am concerned is as follows. The conduct that is created as an offence has long been criminal conduct and we have not experienced difficulties in bringing prosecutions for that conduct. In a sense, nothing is added by the creation of an offence that covers existing criminal conduct. As far as the penalty is concerned, both the sentencing guidelines and the case law have suggested that the ranges set out in the Bill are right for these sorts of offence. Therefore, to some extent, the Bill is reflecting what is already sentencing practice.
Keir Starmer: I think it is mandatory but with some opportunity to take into account particular circumstances, which are not dissimilar to the circumstances that the sentencing guidelines and the courts have already suggested ought to be taken into account. There is a rigidity that was not in the sentencing guidelines, but there is no evidence to suggest that there was a problem with bringing charges in relation to this conduct or that there was a problem in the application of the guidelines as they were. No doubt this will clarify the position, but I am not sure there was an evidential base.
Keir Starmer: Not necessarily. If we look at cases, it allows us to try to inject some consistency. One of the things we have done is to make sure that all our out of court disposals are put on a website quarter by quarter for each of our areas, so that people can see whether we are being consistent. It is really a matter of agreeing with the police the approach and the thresholds that will bring the consistency. I am not in favour of saying that only the CPS can bring consistency and the police cannot. We have to work with the police to bring that consistency. But where the police can charge an individual, it makes sense to give them the power to suspend that charging decision, which is effectively what it is, and to allow them to conditionally caution.
Keir Starmer: As I understand it, there is further work to be done on the overall scheme for out of court disposals. That is not within the Bill. We intend to play our part in that. What is required is a coherent framework. This is not critical of the police or anybody else, but the framework we have is one that everybody has inherited because it has been a piecemeal development. That was understandable. We now need a scheme that is much more consistent and coherent. But I do not think that the Bill is intended to achieve that; that is a separate piece of work.