Clause 58

Criminal Justice and Immigration Bill – in a Public Bill Committee am 3:00 pm ar 22 Tachwedd 2007.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Extension of powers of non-legal staff

Question proposed, That the clause stand part of the Bill.

Photo of David Burrowes David Burrowes Shadow Minister (Justice) 3:15, 22 Tachwedd 2007

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”,


“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?

Photo of Charles Walker Charles Walker Ceidwadwyr, Broxbourne

I, too, am concerned about the downgrading of the legal and judicial system. There are many good Crown Prosecution Service lawyers out there who do a fantastic job on behalf of their clients, but I am afraid that there are also some fairly poor ones who do not provide adequate representation in a court of law. When they fail to do so, they deny victims the justice that they deserve; they deny the families of someone who has been killed in a road accident, for example, the closure that they deserve. I am concerned about anything that will create greater imbalance.

Given that there is already a weakness among some CPS lawyers, having people who are not even legally trained representing families in magistrates courts will present a host of problems. One of the main problems will be that if there has been a road traffic accident, for example, there will invariably be an imbalance in representation. The victim, or the family of someone killed in an accident, will invariably be the economically weaker party. They will be represented by the CPS or one of these paralegals, whereas the driver of the lorry or car will be represented by their insurance company, which will not want to pay out on any conviction. It is incumbent on all politicians to ensure that we do not have justice on the cheap and that we ensure that the victims of tragedy and crime get the best representation that we can possibly provide. The clause may deny them that representation and thereby deny them the justice that they invariably deserve.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I do not want to repeat everything that has been said adequately and fully by the hon. Members for Enfield, Southgate and for Broxbourne, but I wish to express sympathy with their views. I see the provision not as a trade union or closed shop matter, but as something that affects the interests of justice in our courts system.

It is important that we ensure that all sides of a case—both the prosecution and the defence—are properly represented in court. There is at least a  suspicion—I would say a real doubt—about whether that can be the case if relatively unqualified people represent the prosecution in an opposed case. Completely different questions apply in an uncontested case, but in a contested case it is innately wrong that we should put ourselves in such a position simply out of economic expediency, which can be the only argument in favour of the measure.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice 3:30, 22 Tachwedd 2007

I am well aware of the strong feelings that the clause has excited, not just in the parties and in members of the Committee but in those outside who made representations, not least the legal profession, but also others. We heard evidence from the Magistrates Association. I understand the concern that has been expressed.

It may be helpful if I set out what clause 58 does and does not do, then deal with some of the points that have been raised. It amends the Prosecution of Offences Act 1985 to remove certain statutory exceptions that limit the types of cases and hearings in which Crown Prosecution Service designated caseworkers may be the advocate. The purpose of extending the designated caseworker remit is to enable them to conduct a wider range of proceedings before the magistrates courts—including, as hon. Members said, in summary trials.

There is no doubt that a balance has to be struck between efficiency and effectiveness in dealing with straightforward advocacy in the magistrates courts and fully protecting the rights of victims who are often represented by CPS lawyers and designated caseworkers—a point raised by hon. Members—and ensuring that the CPS does as effective a job as it can and obtains proper value for taxpayers’ money. There is always a balance to be struck in such matters, and there may be a slight disagreement about where that balance ought to be struck.

Photo of Charles Walker Charles Walker Ceidwadwyr, Broxbourne

In some cases prosecuted by the CPS, the family of the victim may feel that the lawyer has not prosecuted the case effectively or professionally. What options are open to the family to raise their concerns with the Home Office or the CPS?

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

I think that all of us who are or have been members of the legal profession would say that often, particularly when a case is lost, that clients are not happy with the advocacy in contested trials, whether of a barrister, a solicitor or—if the clause is accepted—a designated caseworker. However, the hon. Gentleman will be aware that there is no such thing as a negligence claim in respect of court advocacy. Qualified legal staff have professional rules and obligations. That brings me back to the important point raised by the hon. Member for Enfield, Southgate about regulation.

Other than making complaints, it is not possible to take negligence action against an advocate for not putting a case well enough. Many of us who have practised in the law have come across clients who would have done that if it had been possible, because they were not satisfied with what the barrister or solicitor had done, or with the way in which the case was presented  or prepared. Of course, judicial proceedings are for the judge, and at the end of the day they have to be accepted or appealed.

Photo of Charles Walker Charles Walker Ceidwadwyr, Broxbourne

There are, as I said, good CPS lawyers, but all professions have people of variable quality—even our own profession or calling of politics. What mechanisms does the CPS have in place to monitor the performance of its barristers and solicitors to ensure that they are operating to the highest professional standards?

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

I shall comment on the current internal procedures of the CPS to ensure proper standards in respect of designated caseworkers. They would apply also in respect of the extension.

The hon. Member for Enfield, Southgate said that the CPS and the DDP do not support change. I have a letter from the DDP dated 4 October to Sally Dickinson, the secretary of the Magistrates Association. She said:

“In relation to Clause 58 of the Bill, you outline your opposition to the proposal and state, ‘We understand that the CPS does not favour this’. This assertion is not correct. The CPS and the previous Attorney General have sought this legislative change and have worked closely with the Ministry of Justice and Parliamentary Counsel in the drafting of the clause. I hope that I have now clarified the point and would ask that you amend your published response to reflect the CPS position.”

It is not the case that the CPS does not support the change. It does.

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

I am grateful for that. I was seeking clarification on behalf of the Magistrates Association. In some ways that is a surprise. One would have imagined it to be toeing the line in supporting the Bill. When the DPP wrote to The Times to insist that he could not imagine a situation in which caseworkers could be entrusted to handle cases where a defendant might go to jail—

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

The DPP did not write to The Times. He was quoted in The Times, but not necessarily accurately. He certainly has not written to The Times to say that.

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

To clarify, it was noted in The Times that that is what he said. Clearly the position is that under the clause caseworkers would be entrusted to handle cases in which a defendant might go to jail.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

My understanding is that the DPP certainly did not write to The Times and say what the hon. Gentleman suggests. We all know of instances where quotes in newspapers have not been entirely accurate. That is as much as I can say in respect of this. That is as far as my knowledge goes. I would be happy to come back if I have misled the Committee. I think that that is accurate.

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

If the quote is inaccurate, then that is so. But caseworkers would nevertheless be entrusted to handle cases where a defendant might go to jail.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

It certainly is so in respect of the current proposal, where we are looking at contested trials within the magistrates court jurisdiction, which includes penalties of up to six months’ imprisonment. That certainly follows. It might help the Committee if I just say a little about the intention in all of this. The Committee may then agree or disagree on whether it is a good idea, but it might illuminate the discussion if I set that out.

The intention of the Crown Prosecution Service is to adopt a gradualist approach in deploying designated caseworkers to prosecute summary trials. Indeed, the DPP will, through the exercise of his powers under section 7A of the Prosecution of Offences Act 1985, impose internal restrictions that will govern the nature of the trials that designated caseworkers may be asked to undertake. I can also assure the Committee that only those designated caseworkers who have undergone an externally assessed training course will be permitted to appear before the magistrates courts and prosecute trials.

The clause will also enable designated caseworkers to appear before the magistrates court and have conduct of proceedings that relate to offences that are indictable only. Such proceedings would include those under section 6(2) of the Magistrates’ Courts Act 1980, which are often referred to colloquially before the courts as “paper committals” and are uncontested proceedings. The Committee may appreciate that these are now, in essence, more an administrative function but at present it is seen as a limitation that undermines the effective and efficient deployment of designated caseworkers.

Similarly, the clause will enable designated caseworkers to appear before the court for the administrative exercise of “sending” a defendant for trial to the Crown court. These provisions under section 51 of the Crime and Disorder Act 1988 are, again, uncontested and administrative in nature, and in the majority of instances this is not an effective use of a Crown prosecutor. The clause would also build on the experience of designated caseworkers who currently undertake bail applications on summary and either-way offences by extending their powers to include offences that are indictable only.

This amendment is necessary to enable designated caseworkers to appear in committal proceedings and “sending” proceedings where consideration of bail is a prerequisite. The clause will also enable a designated caseworker to undertake hearings that are referred to as “preventative civil orders”. As the hon. Gentleman hon. Member for Enfield, Southgate said, there are many ancillary civil orders that may now be made by criminal courts, and not always where there is a criminal conviction. These hearings take place either after the verdict of the court has been announced, were the verdict to be “not guilty”, or, when there is a conviction once sentence has been passed. These hearings, such as those for antisocial behaviour orders or those for restraining orders, are not classed as criminal proceedings. They are, in fact, civil proceedings and at present a designated caseworker may appear before magistrates courts only in criminal proceedings.

That is the extent of the clause. There is also the relatively rare case in which the clause will permit a designated caseworker to appear in proceedings where there is a notice of transfer issue under either section 4  of the Criminal Justice Act 1987 or section 53 of the Criminal Justice Act 1991. These matters are ordinarily now a rarity before the courts, but the clause would extend the power of designated caseworkers to appear in respect of those matters, too. I wanted to get on the record what the clause is proposing.

Photo of Nick Hurd Nick Hurd Ceidwadwyr, Ruislip - Northwood

I listened very carefully the Minister, and this is one of the clauses in respect of which my constituents would have most difficulty in understanding the Government’s objectives. The Minister talked earlier about the need for a balance, and conceded that cost was clearly a consideration in those objectives. Will she share with the Committee exactly what cost savings the Government expect to make from the move, and say what evaluation has been made in respect of public opinion and the potential cost to the credibility of the criminal justice system?

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

I am speaking from relatively recent memory, but if the hon. Gentleman looks at the explanatory notes, he will see that a cost saving of £5 million a year is anticipated.

That we need our public services to be as efficient as possible is one consideration. Having said that, I understand the concerns that have been expressed in Committee, particularly by those hon. Members who have spoken in this debate. We want to reach as much of a consensus as possible with those who have expressed worries. Discussions of an exploratory nature are taking place with the Institute of Legal Executives regarding possible membership of that institute for designated caseworkers and the CPS training programme for designated caseworkers.

Photo of Nick Hurd Nick Hurd Ceidwadwyr, Ruislip - Northwood

Having dealt so explicitly with the first half of my question, can the hon. Lady answer the second part about the attitudes of members of the public whom we represent? At the moment, they have a fragile sense of confidence in the criminal justice system. What tests of public opinion have been carried out about this dumbing-down of justice?

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

I shall be waved at if I am wrong, but as far as I am aware there have been no consultations with members of the public. We would not necessarily expect that at this stage. We certainly have not done any opinion polling or work of that nature in respect of the clause.

Photo of Philip Hollobone Philip Hollobone Ceidwadwyr, Kettering

That is not entirely surprising. If we set that answer in context, does it not reflect the Government’s policy in many different areas? In our classrooms, teachers are being—

Photo of Edward O'Hara Edward O'Hara Llafur, Knowsley South

Order. We are departing from the business of the Committee.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

I have tried to be open with the Committee about the fact that I understand fully the concerns that have been expressed. We are seeking an agreed way through with those who have highlighted their worries, particularly the legal profession. It is not our intention to deskill to the extent that people cannot have confidence in the workings of those who present cases in the magistrates court.

I shall reflect on the concerns that have been expressed and perhaps come back at the remaining stages of the Bill with some answers for those hon. Members who have drawn them to my attention. We do not want to put the provision in place in the teeth of the opposition of everyone, or of good sense; we want to take it forward correctly. We want to achieve a proper balance between that and allaying the concerns that have been expressed, particularly by the legal profession, about the implications of such a provision. On that basis, I hope that the Committee will allow the clause to stand part of the Bill.

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

The Opposition are not convinced by the assurances that there might be some negotiations with ILEX about training, quality or representation. We have already debated the fundamental principle that is at stake, the heart of which is that—given the percentage of criminal cases that might take place in the magistrates court—the majority of the public will be worried that the clause will lead to cases being delegated to laypeople who are not properly qualified to carry out such tasks, however sincerely they perform them. In the interests of confidence in the criminal justice system, I invite the Committee to vote against clause stand part.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 9, Noes 6.

Rhif adran 3 Nimrod Review — Statement — Clause 58

Ie: 9 MPs

Na: 6 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly agreed to.

Clause 58 ordered to stand part of the Bill.