Lay prosecutors:revolution by the back door

John Malpas examines the impact of a wave of reforms that has hit the CPS even before the results of an independent inquiry are known.

GIVEN the new Government's obvious determination to hit the ground running with a string of well-publicised policy announcements, it was remarkably coy about its decision to allow lay CPS staff to prosecute uncontested cases in the magistrates courts.

The move, taken together with the decision to allow non-lawyers to review files and to deploy CPS staff permanently in police stations, could “change the face of the CPS” according to Roger Ede, secretary of the Law Society's criminal law committee.

Yet when Home Secretary Jack Straw stood up in Parliament at the end of last month to announce the Government's response to the Narey Report (the Home Office paper that originally suggested the idea of lay CPS prosecutors) he did not refer to the decision.

Instead, he told MPs that further details of the Government's response to the report could be found in a written answer to a parliamentary question. But the decisions were not mentioned in the written answer either.

This meant that anyone who was interested in finding out exactly what the Government had in mind for the CPS had to go to the House of Commons and dig out a document from the library.

The Association of First Division Civil Servants (FDA), which represents the lawyers in the CPS, did just that, and was not only horrified by what it discovered but furious at the way the Government had set about announcing the changes.

Kevin Goodwin, convener of the FDA's CPS section, resents the fact that the union was forced to go on a “paper chase” to uncover what could arguably herald the most important shake-up of the CPS since it was founded. “I would have expected the Government to be more open and transparent about an issue of such significance,” he said.

Goodwin is astonished by the Government's decision and the sentiment is echoed by the Law Society and the Legal Action Group, which both expected the Government to wait for the inquiry into the CPS being undertaken by Sir Iain Glidewell to be completed before they acted upon the Narey Report.

When the Lord Chancellor, Lord Irvine of Lairg, set up a similar inquiry into civil justice, headed by Sir Peter Middleton, he said he would wait for the enquiry to report before making any key decisions. By contrast the CPS has been hit by a wave of reforms before Glidewell has even finished taking evidence.

The first reform occurred at the same time as the review was announced, when the Attorney General, John Morris QC, asked Director of Public Prosecutions Dame Barbara Mills QC to immediately set about decentralising the service by creating 42 new areas, each to be headed by a chief crown prosecutor.

Then, in the wake of the controversy surrounding the recent successful high court challenges against CPS decisions not to prosecute police officers over two deaths in custody, Mills was ordered to seek independent legal advice from Treasury counsel in custody cases. And hard on the heels of that decision came the Government's lay prosecutors bombshell – which is dismissed as a blatant cost-cutting exercise by the FDA.

The Government's decision to act on the Narey Report recommendations so swiftly is particularly baffling given the controversy that has surrounded the report.

The internal Home Office investigation was commissioned by the then Tory Home Secretary Michael Howard shortly before the general election. Its critics – and there were many – dismissed it as an ill-thought-out document produced 'on the hoof' as an election tool for the Tories.

It was singled out for attack by the Lord Chief Justice, Lord Bingham, who criticised the lack of consultation prior to its publication. He also warned that to have a permanent CPS presence at police stations would be to risk undermining the independence of the CPS.

Lord Bingham said that Narey's proposal for lay CPS staff to review files and prosecute uncontested cases “appears to reflect a belief that such matters are relatively straightforward and call for little technical understanding.”

“In many cases this is no doubt true,” he said tellingly. “In other cases it is not.”

This view is shared by barrister Neil Addison, a former CPS prosecutor. He points out that although a suspect may intend to plead guilty to an apparently straightforward case, all sorts of problems can, and often do, emerge during the hearing which can only be dealt with speedily by lawyers.

“How do you determine a straightforward uncontested case?” he asked. “It's not as simple as it seems. These issues should have been left to Glidewell.”

Vicki Chapman, head of policy at the Legal Action Group, said she was deeply fearful of the potential consequences of the CPS reforms.

So far there is little flesh to put on the bones of the Government announcements, so it is difficult to know exactly how the new arrangements will work, but the Narey Report envisaged lay CPS staff based at police stations working with police to draw up “super-abbreviated” prosecution files for “straightforward guilty plea cases”. Defendants could then be prosecuted the day after they were charged.

Chapman, who points out that there is no reason to believe that unqualified staff will do things any more quickly than qualified prosecutors, considers there is a real danger that the drive to speed up cases will lead to an upsurge in miscarriages of justice.

She said pressure would be put on vulnerable suspects to plead guilty to get their cases over and done with, while the drive for speed would mean that even fewer defendants would receive proper legal advice. “Shoplifting is a classic example,” she said. “A suspect may be guilty in the sense that he or she did it, but not legally guilty as there was no intention. It is essential that he or she receives proper advice.”

Of course, there is some time to go before the reforms will be implemented. The Government's move to introduce lay prosecutors will need legislation, and both the Law Society and the Legal Action Group will be attempting to persuade the Government to think again.

Although Labour currently enjoys a massive Commons majority, judges in the House of Lords (perhaps led by Lord Bingham) are almost certain to mount a rearguard action.

And, of course, there is Glidewell, who is understood to be distinctly unimpressed at the way his inquiry has been sidelined, and may well have something to say about it when he reports at the end of the year.