Facing Justice: Tackling defendants' non-attendance at court (HC 103-i) Public Accounts Committee 1 Dec 2004

Evidence given by Mr John Gieve CB, Permanent Under Secretary of State, Home Office; Sir Ron de Witt, Chief Executive, Unified Courts Agency, Department of Constitutional Affairs; Mr Ken Macdonald QC, Director of Public Prosecutions, Crown Prosecution Service; Ms Moira Wallace, Chief Executive, Office for Criminal Justice Reform; and Mr John Burbeck, Chief Constable of Warwickshire, Association of Chief Police Officers.

Q23 Mr. Gerry Steinberg (City of Durham): Mr Macdonald, just to comment on one or two of the answers that you gave to the questions that I was not going to go into but you seemed to confirm to me what I have thought for years when you said that your organisation would decide the charges to be brought to court rather than the police. That is the wrong way round.

Mr Macdonald: I do not agree with you at all.

Q24 Mr. Gerry Steinberg (City of Durham): I am not bothered whether you agree with me or not.

Mr Macdonald: Can I be clear, we have only taken over that power in the last few months. Traditionally it has been the police who have selected the charges. It has only been with the charging reform which has only been in effect in certain areas of the country since the beginning of November.

Q25 Mr. Gerry Steinberg (City of Durham): My experience has been that for the last few years the Crown Prosecution Service have gone clearly for the easy option because they may have had to have a little bit of a battle trying to get the harsher option and people are not getting justice because, frankly, it is your organisation that is deciding what the charge should be. If it were up to the police we would be seeing people actually charged for the offences that they are committing and not for some minor offence. Let me take, for example, killing by people in a motor car where perhaps dangerous driving might get the person seven years and you go for careless driving which might get them a fine of 150 quid because, frankly, I do not think you have got the capability of being able to prosecute harshly enough

Mr Macdonald: Decisions about what the appropriate criminal charge is, it seems to me, are decisions which are best taken by lawyers because in order to determine what a charge is you have to apply the law to a set of facts.

Q26 Mr. Gerry Steinberg (City of Durham): I would disagree with you because lawyers are there to do a job in terms of what charges the police have put forward. I have a son and daughter who are lawyers and it is nothing to do with them what the charges are. They are there to defend or prosecute the particular charges the police think have been committed, not what you think have been committed.

Mr Macdonald: I do not agree with you at all. The charges have to go before criminal courts and they have to be prosecuted. If the charge is wrong all that happens is that the time of the prosecutor ---

Q27 Mr. Gerry Steinberg (City of Durham): So it is up to your organisation to decide whether the charge is wrong or right, is it?

Mr Macdonald: It is up to us to decide what the appropriate charge is. If you apply an inappropriate charge all that happens is that court time, prosecutor time and defence lawyer time is taken up withdrawing charges, changing charges, dumping charges. This charging programme reform was proposed by Lord Justice Auld in his report into the criminal justice system and it was piloted across 14 priority areas (which is about 60% of the country) in 2003. The result of it was that the conviction rate increased by 15%, the guilty plea rate increased by 30%, and the discontinuance rate decreased by 69%.

Q28 Mr. Gerry Steinberg (City of Durham): Big deal. That means that I am quite happy to declare myself guilty of careless driving to get a 100 quid fine when I know if I am brought forward for dangerous driving I might get eight years. I am sure you are delighted that you are getting more successful prosecutions. Get away! That does surprise me!

Mr Macdonald: This is about ensuring that criminal charges which are proceeded with at the start are the right criminal charges not the wrong criminal charges. It is simply not the case ---

Q29 Mr. Gerry Steinberg (City of Durham): But it is not up to your organisation to decide that.

Mr Macdonald: Of course it is.

Q30 Mr. Gerry Steinberg (City of Durham): Of course it is not. It is up to the jury to decide.

Mr Macdonald: It is up to us to decide what is an appropriate charge to place before a jury and that is the purpose ---

Q31 Mr. Gerry Steinberg (City of Durham): I just do not agree with you.

Mr Macdonald: Obviously the jury decides on the basis of the evidence that is brought whether a man is guilty or not but bringing a criminal charge is a different test to the jury. A criminal charge is brought if first there is a realistic prospect of conviction (which means simply a better than 50% chance) and also if it is in the public interest to prosecute. The jury will convict if they are sure beyond reasonable doubt that someone is guilty. Those are different tests.

Q32 Mr. Gerry Steinberg (City of Durham): It is your job as prosecuting solicitors or lawyers to put forward a case so that the jury has no doubt.

Mr Macdonald: No it is not.

Q33 Mr. Gerry Steinberg (City of Durham): Yes it is.

Mr Macdonald: No it is.

Q34 Mr. Gerry Steinberg (City of Durham): Of course it is. People are walking the streets who are damn well guilty because you do not bring the right charges.

Mr Macdonald: It is not our job to proceed with a case for which there is no evidence.

Q35 Mr. Gerry Steinberg (City of Durham): In your view.

Mr Macdonald: Yes, that is my view.

Mr. Gerry Steinberg (City of Durham): Frankly, no wonder the Crown Prosecution Service is the way it is if it is up to you to make the decisions. Let's move on ---

Q36 Chairman: Did you want to say something Mr, Gieve?

Mr Gieve: Can I just add something on this. I think you are complaining about experience over a number of years when the police chose the charge not the prosecutor.

Q37 Mr. Gerry Steinberg (City of Durham): No, I am sorry, you are wrong, Mr Gieve.

Mr Gieve: Because this is quite a new reform. The second point is that I think the old system under which the police chose the charge and then sent the file up the road ---

Q38 Mr. Gerry Steinberg (City of Durham): I have two girls in my constituency dead and the police wanted to bring charges of dangerous driving or even more serious charges and the Crown Prosecution Service would not because they were not sure they were going to get a conviction. That to me is absolutely outrageous.

Mr Macdonald: That is not the test for bringing a prosecution. The test for bringing a prosecution is not that we have to be sure that there is going to be a conviction, it is that there is a realistic prospect of conviction, which means a more than 50% chance.

Mr. Gerry Steinberg (City of Durham): There was one which had a 100% chance.

Chairman: Mr Steinberg, Mr Field has a supplementary to your question which he is anxious to ask. Do you mind if he comes in with one quick supplementary and then you can carry on.

Q39 Mr Field: It is a supplementary in stages and it follows Mr Steinberg's point. You talked about this whole rate of attrition of people turning up to court, which accords with my experience recently of trying to bring a case. First of all, the police thought there was a case but the Crown Prosecution Service unbeknown to me closed the case. I then had to get it opened again. What the local police thought was the charge was not the charge when we finally months and months and months later got into court. The court's first hearing was adjourned. I said that I did not want any settlement unless I was present and the Crown Prosecution Service said, "You have misunderstood this, you are just a witness." I said, "No, no, it is my case". "No, you are just a witness." "I am not just a witness, I am the only witness to this. It is something that happened against me." They then, against my express wishes, settled out of court with the defendant and the person got a rap on the knuckles. I was the one who was pushing this case, asking for it to occur, wishing to turn up, and I am treated like that, totally disempowered. Do you not understand why our constituents feel, as Mr Steinberg was saying, that this is not our legal system operating on behalf of us, it has been professionalised away from us and we cannot make our wishes felt through it, particularly when the in police acting on our side to bring cases have their knees knocked away from them by the professionals in the Crown Prosecution Service?

Mr McDonald: I understand what you are saying, as someone presumably who was a victim of crime, and it is absolutely right that prosecutors have not traditionally communicated properly with victims of crime. I think when my organisation, the CPS, was set up, it was actually ex-directory.

Q40 Mr Field: They communicated all right, I did not like what they were communicating and they did not listen to what I said.

Mr McDonald: I think there is a difficulty here which we have to confront, and it is that somebody has to decide what an appropriate charge is in a criminal case. It seems to me that that is a decision which has to be made by lawyers, as it is in every other jurisdiction apart from our own.

Q41 Mr Field: You should be an agent to help me get justice, not to actually exclude me from getting justice. That is how it turns out, this is what Mr Steinberg has been saying.

Mr McDonald: I certainly agree that victims and witnesses should not be excluded from justice, but I think that the final decision about what an appropriate criminal charge is has to be made by a prosecutor, and if the victim has a particular attitude about what a charge ought to be, clearly prosecutors ought to listen to that and take the victim's views into account, or the views of any witness, but the final decision has to be with the prosecutor. If the prosecutor disagrees with the victim, the prosecutor cannot advise that someone should be charged with an offence which he or she, the prosecutor, believes does not pass the appropriate test for prosecution, and sometimes that means that prosecutors will not do what victims and witnesses want. I think that is inevitable.

Q42 Mr Field: It is not just us, it is the police attitude. I did not know what the charge should be, but when the policeman took the statement finally - with a biro, taking an hour and a half with the policeman sitting by me, I could not actually dictate it separately and then get him to agree that that is what I actually did say - he told me how he thought the law would operate in these circumstances, that was the charge. The papers then go off and the Crown Prosecution not only close the case the next day, without even consulting me, but when they were finally forced to open the case again because there is an MP on the end of all of this, they downgraded what the police thought and advised me what the charge was, and instead of being my servant you were my master.

Mr McDonald: I do not know the facts of your particular case so I cannot comment on it, Mr Field, but prosecutors have to have a much closer relationship with the public and they need to engage more with the public, and we do now formulate our policies on prosecuting types of crimes, we engage with community groups, we hold public meetings and we take into account, where we can, the views of a community. We publish policies, for example, on domestic violence, serious sex crime, racially aggravated crime and so on; we publish these documents, we consult and we ask to be judged against them but, finally, there is a space here where prosecutors cannot just be the servants of people in the sense that you describe. I think it is appalling that you were not communicated with and it may be that your views were not adequately taken into account, but finally the prosecutor has to step back and make a decision, which is a legal decision, based upon his or her analysis of the evidence, on the application of the law to that. I would just like to say this, that this reform, the charging reform, has been strongly supported by the police. I know you will always get individual cases of officers saying that they have had bad experiences, but the police in general are strongly supportive of this reform, as I am sure Mr Burbeck will confirm. What we are doing here is entering territory which every other fair trial jurisdiction has been in for years; it has been an anomaly in this country that charging decisions have been made solely by the police.

Q43 Mr Field: One last point before we go back to Mr Steinberg - and I am grateful for intervening - you keep saying that your function is to decide whether it will be successful.

Mr McDonald: Yes.

Mr Field: Put yourself in the place of those parents who have lost their daughters; they are not too worried about whether it is the £100 fine or not, they want the major charge pushed in court. If in fact it does not carry in court they then walk out of court and say my goodness, that is shocking, but the thought of actually coming out and seeing somebody who has killed your child with a £100 fine because you could not actually get the courts to get the person who killed your daughter to face the charge which you think they should face, is far worse than you being able to tick a box and say success, £100 fine.

Q44 Mr. Gerry Steinberg (City of Durham): Exactly.

Mr McDonald: Can I just answer that point since you make it? Some of the most difficult cases which I get to see are the sorts of cases you are talking about, probably the most difficult cases, but I do not think it is tenable to say there should be a criminal justice system where charges are brought even if the evidence does not support those charges. In essence, if we strip down what you are arguing for, it is a system which allows cases to get into court even if, on a legal analysis, the evidence does not support the charge, and I just do not think that that is a tenable position.

Q45 Mr Field: You have a dead body and a car.

Mr McDonald: The law says more than that you have a dead body and a car in order to support a charge of dangerous driving. You could have a dead body because somebody has jumped out off the pavement; that would not support a charge of dangerous driving.

Q46 Mr. Gerry Steinberg (City of Durham): And you would not therefore take the case to court on that basis.

Mr Gieve: The point I want to raise here in response to both these points is that there are going to be frustrations and in particular cases there is going to be real anger, but actually part of the reason for making this change is to bring the prosecutors and the police closer together. In the past the police said "We think it is X", sent the papers down the road and then blamed the prosecutors in some cases for not vigorously prosecuting. What we are trying to do now is get the prosecutors into the police station, talking to the police about what evidence you need to get the more serious charge, and bringing these two sides together. I do see this, therefore, as a way of avoiding many of the frustrations that you are talking about, where someone says "We think it is X" but then does not necessarily investigate and collect the evidence that would be necessary to get X delivered in court.

Mr McDonald: That is an important point, that the responsibility for charging does not simply mean that you should be saying there is not enough evidence, that is the end of it, part of the process is to say this is the evidence that we need to support this charge, so the prosecutors take a far more proactive role in case-building. The relationship between the police and the prosecutors around charging is moving, I think, in the right direction.

Chairman: Mr Steinberg.

Q47 Mr. Gerry Steinberg (City of Durham): I am not going to pursue this any further because we have spent a lot of time on it, I will get onto the report itself. This report is probably one of the most difficult parts of the criminal justice system, and before I read the report I thought that the only way possible to stamp it out completely would be to not have any bail or conditions that were like that, that everybody should be remanded, but when I read the report I found that even if they are remanded they do not get to court on time. Why is that?

Mr Gieve: The main reason why the people who are in prison do not get to court on time is because the prisons do not process them or the escort system does not get there on the dot.

Q48 Mr. Gerry Steinberg (City of Durham): But that is outrageous. You presumably have a judge sitting waiting, a defence lawyer, a prosecution lawyer - all on probably £1000 a day or something - and the prison could not get them there on time? Well, well.

Mr Gieve: I agree that we should get them there on time.

Q49 Mr. Gerry Steinberg (City of Durham): What are you going to do about it?

Mr Gieve: We have contracts with a variety of escort firms and we expect them to get them there on time. We penalise them if they are late.

Q50 Mr. Gerry Steinberg (City of Durham): So Group 4 is to blame.

Mr Gieve: At the moment we have a number of different companies doing this so it is not just Group 4, but there are problems at the moment, more than there were earlier in the year, we have changed the contracts and we will make sure that they deliver.

Q51 Mr. Gerry Steinberg (City of Durham): I have sat in court and watched and the amount of respect that some people have for the judicial system is nil, and the only way that you are going, in my view, to actually make people attend court is if the punishment for not doing so is severe enough. Would you agree with that?

Mr Gieve: The lack of respect can come from two quarters, one is repeatedly seeing that the system is ineffective - and we have to make it effective - the other is general disrespect for authority in all its forms, and I agree that having a suitable punishment for not turning up, for the disrespect, is part of the picture, and that is what the Lord Chief Justice recognised.

Q52 Mr. Gerry Steinberg (City of Durham): What is a suitable punishment?

Mr Gieve: The Practice Direction which is currently operating is that courts should consider as a separate issue straightaway what is the suitable penalty for not turning up, and they should consider a prison sentence, but that will not always be suitable.

Q53 Mr. Gerry Steinberg (City of Durham): Do you think the judge was right the other day to send somebody to prison for six months for taking mobile photographs on a mobile phone in court, for contempt of court?

Mr Gieve: I could not comment on that case, I do not know anything about it.

Q54 Mr. Gerry Steinberg (City of Durham): Why not?

Mr Gieve: I do not know anything about it.

Chairman: He cannot comment on a particular case.

Q55 Mr. Gerry Steinberg (City of Durham): Why not? The judge sent the person to prison for contempt of court because they were taking photographs in court, he got six months. Why cannot somebody who does not turn up for his bail conditions get six months in prison, why should they not get six months in jail?

Ms Wallace: They can.

Q56 Mr. Gerry Steinberg (City of Durham): Why don't they?

Ms Wallace: We are seeing more custodial sentences for failing to appear and the maximum penalty for failing to appear in the Crown court is 12 months and the Magistrates' court is three months; we have seen an increase in consecutive sentencing, i.e. not just ignoring it and sentencing for the original offence.

Q57 Mr. Gerry Steinberg (City of Durham): Why does somebody not come up with the idea, for example, that anybody who does not turn up for their court appearance be tagged automatically?

Ms Wallace: There is a possibility of considering tagging but again you have to look at costs and you have to look at those who will benefit from it.

Mr Gieve: In some cases where people do not turn up the court - and this is also something that we are encouraging the courts to do more often - proceeds with the trial and not to adjourn it, even if they do not turn up, and that is sometimes possible. There are always particular features of particular cases, so in the end you have got to allow the judge or the magistrate to consider those.

Mr. Gerry Steinberg (City of Durham): The general public are sick and tired and fed up with the criminal justice system which you five people are involved in, they are utterly fed up with it. They do not see any fairness in the system, they see the criminal getting away with it, they see people getting off, they see people walking the streets who they know are causing havoc all over the place and, frankly, you just seem to me to be very complacent about it all and you do not seem to understand the misery that some people have because of some of these louts who are getting away with murder.

Q58 Chairman: Literally with murder this week.

Mr Gieve: I sincerely hope they will not get away with this murder, and in fact we bring most murderers to justice. I resent the charge of complacency, you are speaking as though we have just come on this report and no one was doing anything about it. We have introduced a massive programme of criminal justice reform over the last few years, including on antisocial behaviour, precisely to address the issues that you are talking about.

Q59 Mr. Gerry Steinberg (City of Durham): Mr Gieve, I invite you to come on some of my surgeries with me on a Saturday morning; the main item now that I get - I do not know about other members but I suspect it is not out of the ordinary - at every surgery that I go to, I get people coming to me complaining about the criminal justice system and the harassment, the hassle and the unfairness of it all.

Mr Gieve: I do, as part of my job, go out and talk to people. I was in Leicester the other day talking to a couple who had been badly harassed over many years and I could see the frustration and despair they had and I felt very angry about it. I absolutely do understand what you are talking about and we are trying to address it, to get a system which works better, brings more people to justice, which has the right charges on patterns of behaviour as well as on individual acts. We are on this case, we genuinely are.

Q60 Mr. Gerry Steinberg (City of Durham): In the report I read where the court - see if I have it right - decides on who to give bail to, and if they decide there is a particular character who they have doubts about, they still give them bail but they then say they must report to the police and - believe it or not - 50% of them do not report to the police. It is obvious, is it not, that that is going to happen? Why are they given bail in the first place? They know that these people are not going to attend court, so what do they do? They say they must report to the police, knowing damn well that they are never going to report to the police, or a big percentage of them are not. Why are they given bail in the first place? That is a stupid system, it is a nonsense system.

Mr Gieve: You have to understand that the starting presumption is that people are entitled to bail unless certain conditions are met and, in fact, as this report shows, 85% of those given bail turn up. Now 85% is too low and we want to drive it up, and there are a number of things in this report and other reports which will drive it up, but we are never going to get to 100% because there are always going to be people who we do not know very much about and it is right that the court should give them the benefit of the doubt. There are always going to be some people who the court has to make a balanced judgement on, they may not turn up but the risk is not so severe that it justifies holding them in custody, which is extremely expensive, as you know. We believe we can get the 85% further up, but there is no system in the world to get it to 100%.

Q61 Mr. Gerry Steinberg (City of Durham): Changing the subject slightly again, I was told over the weekend that if somebody does not turn up in court it takes the Magistrates' court a week to inform the police that they did not turn up in court, and therefore it takes over a week for the police then to re-arrest that person. How does it take a week for a court to inform the police, when you can go to a computer and you can type an email and within 10 seconds the police could know that that person has not come to court. Why does it take a week? What this person then told me was that they now know, in certain areas, that it is going to take over a week for the police to be informed so the solicitors can get to the defendant within that week and get them to court to apologise, and nothing happens.

Sir Ron de Witt: I think part of the problem is what I alluded to earlier, that at the moment most things are done manually, but we have introduced a secure email system to try and improve the communication system, and as you will have seen from the report there are trials that have taken place that have shown that has improved communications with the police dramatically. I agree with you that it should not take a week to communicate that, but part of the processes that we are putting in place now are trying to make sure that that does not happen in the future.

Mr. Gerry Steinberg (City of Durham): I will finish now - I have another three pages and I could go on for another hour but I will not - just to say - and I am not joking - that the two most arrogant organisations that I deal with as a Member of Parliament are the Magistrates' courts and the Crown prosecution Service.

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Q82 Mr. Gerry Steinberg (City of Durham): When I read the report I got the impression that the police were put under a tremendous amount of pressure on the basis of the follow-up work, the reports etc. that they had to do. What function does the Probation Service offer in this whole sort of system?

Mr Gieve: The main thing we have been working on with the Probation Service in the last few years is to get them to report and enforces breaches of community penalties more than they used to. In 1997 about 50% of people failing to turn up to their community penalties were reported and taken back to court, we have now got that nearly to 90%. That is an example of how we are trying to tighten up the contribution of the probation service to the credibility of the rest of the system.

Q83 Mr. Gerry Steinberg (City of Durham): I was suggesting something further, I was suggesting that perhaps the Probation Service should be made responsible for some of the activities that the police have to do at the present time. Why can the Probation Service not produce the information to the court that the police have to do at the moment? Why cannot the Probation Service, for example, on bringing offenders back to court, be responsible for that, why has it got to be the police?

Mr Gieve: For the under 18s I think the Youth Offending Teams do take part of the responsibility for managing the offenders both before the case and getting them to court, and I know the Probation Service have not had the powers to go and get the warrant from the court and go on and arrest people; probation officers are not police officers. It has to be a partnership. In terms of getting the information from the court which is dealt with here, the Probation Service has been concentrating on other things and has done less reporting than they used to, and what this report recommends and what we will do is to examine whether or not we should round that back up or target it more on particular sorts of offenders in order precisely to give the courts and therefore the other agencies a better service.

Q84 Mr. Gerry Steinberg (City of Durham): When Mr McDonald was giving examples or saying what the aims of the organisation are, I was trying to rack my brains and think of examples. Two came to me like that. The first one was I had a constituent in my surgery about two months ago, she had been threatened over a mobile telephone by her husband that he was going to kill her; he had a history of violence towards her. I thought that was a very serious crime, the police told her it was a very serious crime and they would take the severe action that was necessary, because from past experience she knew that he might try and carry this threat out. The Crown Prosecution Service decided to prosecute him on the basis of misuse of a mobile phone or something and he got a conditional discharge. That is an example that just came to mind. Another example is one where I spent hours with a gentleman and he was actually wrong and the Crown Prosecution Service in my view were right in what they did. A relation walked into his house and hit him, over a will or something, and the Crown Prosecution Service might have been perfectly right in what they did, but the man was a difficult man and the Crown Prosecution Service would not meet him to discuss it because he was difficult.

Mr McDonald: I do not know the details of either of the cases that you have mentioned. So far as the first one is concerned, that is classed as domestic violence which we are pushing on much harder than we did traditionally, together with the police, and far more of those cases are being prosecuted and they should be because I think it is a hidden area of crime which can cross all classes everywhere. It needs to be addressed as a crime and prosecuted more vigorously. So far as the second case is concerned it is obviously of fundamental importance for us to communicate directly with victims when we decide not to prosecute their cases, and I accept that, but again we are trying to improve our performance in that area. We are trying to change the culture of quite a large organisation and I know that any MP, any other person, is going to have stories of bad examples and stories of bad practice, and that will apply to us as well as to other agencies and other organisations as well.

This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee. Neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings.