AUGUST 1999

C O N T E N T S

INTRODUCTION

1.1 The CPS Inspectorate was invited by the Project Manager of the CPS Reducing Delays (Narey) Project to assist Ernst and Young, the principal evaluators, in the assessment of the lay review and lay presentation of cases aspect of the Narey pilot.

1.2 The criteria for the lay review and lay presentation of cases are set out in the document: "Designated Caseworker - Criteria for review and presentation - Pilot exercise". To assist the reader we have reproduced this document at annex A.

1.3 The purpose of the review was to inspect:

• the quality of decision-making by designated caseworkers in cases that met the criteria;
• the quality of advocacy by designated caseworkers; and
• any Branch systems that are in place to ensure the correct allocation of cases and the monitoring of designated caseworkers.

1.5 Chapter 2 sets out the background to the pilot exercise.

1.6 Chapter 3 summarises the review team's conclusions and recommendations.

1.7 Chapter 4 sets out the methodology used in this review.

1.8 The remaining chapters examine our findings in depth and set out the evidence on which those findings are based.

1.9 The annexes at the end of the report contain background information, which is designed to help the reader with matters of detail.

1.10 The review team comprised four CPS inspectors and an inspector seconded from Her Magistrates' Courts Service Inspectorate (HMMCSI). The Chief Inspector is grateful to the Chief Inspector of HMMCSI for his co-operation and assistance in releasing an inspector to participate in the review.
The Chief Inspector and the review team are grateful for the co-operation and support of all those with whom they came into contact during the review - either in the preparation of material for the team's consideration, or in interview.

1.12 We have, in the body of this report, referred, where appropriate, to those selected to review and present cases as either designated caseworkers or lay presenters. The term designated caseworker is internal to the CPS. We found that external interviewees are more likely to refer to the caseworkers as lay presenters.

1.13 When this review was conducted, the CPS was divided into 13 areas. Each area consisted of a number of Branches, headed by a Branch Crown Prosecutor. There are now 42 areas, each headed by a Chief Crown Prosecutor. When commenting on our findings, we refer to the old structure. Our recommendations and proposals about how the scheme can be taken forward are made with reference to the new structure.

BRANCHES VISITED

Burnley (CPS Lancashire)
Croydon (CPS London)
Northamptonshire (CPS Northamptonshire)
North Staffordshire (CPS Staffordshire)
North Wales (CPS North Wales)
Tyneside (CPS Northumbria)

THE BACKGROUND TO THE REVIEW

2.1 In October 1996, the then Home Secretary appointed Martin Narey to conduct a review in order "to identify ways of expediting the progress of cases through the Criminal Justice System from initiation to resolution consistent with the interests of justice and securing value for money". The report: "Review of Delay in the Criminal Justice System"(the Narey report), was published in February 1997. It contained 33 recommendations, designed to expedite the progress of cases.

2.2 The principal objective of expediting the progress of cases could have been approached within the existing framework, with Crown prosecutors continuing to review and present all cases. The Narey report recognised, however, that to take forward its proposals as a whole it would be necessary to free up Crown prosecutor resources to concentrate on advising in and conducting the more serious casework. It concluded that there were some cases that can be reviewed and presented by CPS staff other than at the prosecutor grade. To facilitate this, the report contained two recommendations:

• "The DPP should confer on lay staff the power of a Crown Prosecutor to review files"; and
• "Non-lawyers employed by the CPS should be able to present uncontested cases in the Magistrates' Courts".

"For section 7A of the 1985 Act there shall be substituted the following section-

7A.(1) The Director may designate, for the purposes of this section, members of the staff of the Crown Prosecution Service who are not Crown Prosecutors.

(2) Subject to such exceptions (if any) as may be specified in the designation, a person so designated shall have such of the following as may be so specified, namely-

(a) the powers and rights of audience of a Crown Prosecutor in relation to-

(i) applications for, or relating to, bail in criminal proceedings;
(ii) the conduct of criminal proceedings in magistrates' courts other than trials;
(b) the powers of such a prosecutor in relation to the conduct of criminal proceedings not falling within paragraph (a)(ii) above.
(3) A person so designated shall exercise any such powers subject to instructions given to him by the Director.
(4) Any such instructions may be given so as to apply generally."

2.4 Sub-sections (5) and (6) define the concepts of 'bail in criminal proceedings' and 'trial'. They also provide that the powers of the designated caseworkers do not extend to cases where there has been an election or direction for Crown Court trial, or in respect of which a notice of transfer has been given under section 4 of the Criminal Justice Act 1987 or section 53 of the Criminal Justice Act 1991. Sub-section (7) requires the DPP to set out, in his annual report, the criteria applied in selecting designated caseworkers, details of their training and any general instructions given to them.

2.5 The Government invited the national Trials Issues Group to co-ordinate the piloting of the key recommendations set out in the Narey report.

2.6 It was against this background that the CPS developed the role of the designated caseworker. The fundamental principle, contained in the "Criteria for review and presentation - pilot exercise", is that designated caseworkers will review and present magistrates' courts cases which are straightforward and with no technical issues or complications of fact or law.

2.7 Before the pilot sites started the scheme, the Government published "The Review of the Crown Prosecution Service" (the Glidewell report). The Glidewell report commented on the proposed introduction of the lay review and lay presentation of cases. On lay presentation, it recognised the benefit to be gained by the CPS in relieving "CPS lawyers of those areas of work which do not really require their skills". The report also recognised that, in some straightforward cases, caseworkers can properly take the initial decisions about whether they should be accepted for prosecution. It emphasised, however, the need for proper instruction, if their work was to involve legal decision-making.

2.8 TIG reviewed the criteria for the scheme in light of the comments contained in the Glidewell report. Following that review, the criteria for the lay review and lay presentation of cases was finalised.

2.9 It is an objective of the CPS that the use of caseworkers, trained in the necessary competences required to review and present certain categories of case, should free up Crown prosecutor resources to concentrate generally on the more difficult magistrates' court and Crown Court work. We have, therefore, looked beyond the Narey fast-tracking provisions to consider how the pilot CPS Branches are able to deploy designated caseworkers more generally to make best use of their resources, for example, by allowing them to present non-Narey traffic cases.

2.10 It is against this background, and the general requirement to expedite the progress of cases, that we have considered the effectiveness of the scheme, and whether the systems in place are conducive to the more effective use of resources.

2.11 We recognise that there is a tension between expedition and quality. The fast-tracking of cases under the scheme creates additional pressures in terms of the time available for file preparation, review and, where necessary, remedial action. We have, therefore, considered whether the implementation of the scheme has impacted on the quality of the decision-making process. We have also considered whether the current criteria best meets the overall aims of the scheme.

2.12 The key issues that we have sought to address are whether the lay review and lay presentation of cases:

• contributes to the expeditious progress of cases through the criminal justice system;
• delivers a level of quality that is consistent with the interests of justice; and
• secures value for money.

3.1 Although our review was directed at the quality and efficacy of the work of designated caseworkers in the context of the Narey pilots, the criteria governing the scheme for lay review and presentation envisages its application to a wider range of cases than simply Narey fast-track cases. Indeed, it is unlikely that many magistrates' courts would generate sufficient such cases as would on their own make the scheme viable. It was therefore inevitable that our review would consider not just the professional quality of the work of designated caseworkers, but also its impact on the Narey fast-track proposals and whether the scheme represented a sensible deployment of CPS resources. Given the inter-dependency of the criminal justice agencies involved in the scheme, our conclusions and recommendations necessarily touch on matters outside the direct responsibility of the Crown Prosecution Service.

3.2 Our three principal findings in summary are:
(i)  the fast-tracking procedures operated using designated caseworkers have achieved the Narey objective in that almost 81% of fast-tracked cases in the sample were finalised at the first appearance;

(ii) the professional quality of the review and presentation work undertaken by designated caseworkers is generally good, although there are some aspects of their work where stricter adherence to the criteria is needed; and

(iii) the cost effectiveness of the designated caseworker scheme, so far as the CPS is concerned, is substantially dependent on the listing practices of the magistrates' courts. We note at paragraph 10.15 that the scheme may not be cost effective if it is restricted to fast-track first appearance cases. But there are potential resource savings if courts list cases in a manner which ensures that designated caseworkers are occupied for a full session by drawing together in one list fast- track cases and others which fall within the established criteria.

3.3 Our work has identified an important issue of principle which we set out at paragraphs 7.28 to 7.34. A tension arises in circumstances where a defendant indicates willingness to plead guilty but the papers submitted by the police have not provided an adequate basis for an informed decision by the CPS as to whether the twin tests in the Code for Crown Prosecutors (the Code) are met. The guidance promulgated on behalf of TIG at the outset was that such cases should be adjourned but the pressures on designated caseworkers to proceed are considerable and a significant minority of cases were progressed without proper review. There is an argument that an individual charged with an offence will know whether or not he or she is guilty and that it is unnecessary, in the case of an adult person of sound mind who has received proper legal advice, to adjourn a case in the face of an indicated guilty plea. There are also significant risks associated with this approach. The point is likely to become more significant in any national rollout simply because the numbers of such cases (if not the proportion) will be greater. It is therefore important that the DPP should establish the policy on this issue clearly and definitively from the outset, not only to the CPS but to all other parties involved in the Narey scheme so that there can be no room for doubt as to what is the proper course in such circumstances. Our other conclusions and recommendations relate to the planning and preparation for the introduction of the scheme, the application of the criteria governing the scheme to particular cases, the quality of review and presentation, how the scheme may be used to best effect and some more general points.

Planning and Preparation

3.4 The CPS selected experienced caseworkers to participate in the pilot exercise and their unavailability for Crown Court work led in most Branches to an initial dip in performance there; in some cases lawyers filled the vacuum by undertaking tasks previously undertaken by caseworkers. This is not an efficient use of resources.

3.5 The training of designated caseworkers was intense but some participants felt that the course material was not focused sufficiently on the type of casework within the scheme criteria. We make recommendations designed to meet those concerns.

3.6 The local inter-agency groups responsible for implementing the pilots worked well and succeeded in meeting a tight timetable so that the necessary support systems were in place at the outset. Each pilot site, however, suffered a bulge in its workload at the outset because bail dates for defendants charged before the start of the pilot were longer than those applicable under the fast-track scheme bringing old and new cases to the courts at the same time. This had an impact on the resources for all the agencies and needs to be taken into account by local criminal justice agencies if the scheme is taken forward nationally.

Application of the scheme criteria

3.7 We found 17 cases in our sample which had been reviewed by designated caseworkers although they did not meet the criteria for the scheme. In only 2 of those cases was there evidence of referral to a supervising prosecutor, to make a decision on how the case should proceed. The lack of information on some files prevented us from determining whether it was appropriate to allocate the case to a designated caseworker.

3.8 Overall, we found little evidence to confirm that the designated caseworkers consult with supervising prosecutors before important decisions are taken. Files are not always endorsed appropriately to record that a prosecutor has been consulted (as the criteria requires) before charges are amended or cases discontinued. We found such endorsements in only 40% of cases in which the charge or charges had been amended and in only 9.1% of those cases in which it was decided that there was not a realistic prospect of conviction.

Quality of review

3.9 Based on a sample size of 863 cases, our review suggests that the quality of designated caseworker decision-making is good. Whilst we did not find any case where we disagreed with the decision to prosecute, there were too many cases where we considered that there was insufficient information on the file for an informed decision to be taken (7.1%). The police were not usually asked to remedy the deficiency. We accept that often there is little time between the initial review of the file and the first hearing. We have already mentioned the tension between expedition and quality and the issue of principle which arises.

Quality of presentation

3.10 Generally, the quality of case presentation is good. All the designated caseworkers appeared well prepared for the thorough knowledge of their cases. The representatives of other agencies are impressed by the standard of case presentation.

3.11 We are, however, concerned that formal monitoring of case presentation does not continue after the initial training period. It is important for the CPS nationally to maintain high standards of case presentation - whether by designated caseworkers or Crown Prosecutors. A designated caseworker should therefore be monitored with the same regularity as a Crown Prosecutor of similar experience.

The impact on resources

3.12 Our findings suggest that the lay review and lay presentation of cases can contribute substantially to the achievement of the CPS objective of freeing up Crown Prosecutor resources. This was not happening on any significant scale at the time of our initial site visits in February but the picture appeared clearer and more encouraging on our revisits in May. We identified at least three significant factors and in each case associated scope for improvement. First, the CPS is not itself fully utilising the designated caseworker scheme: there is scope to expand the review work of designated caseworkers within the existing criteria. Secondly, the listing practices of magistrates' courts do not always allow for the presentation of the full range of cases that meet the criteria. We have mentioned above the scope for additional types of case in the same list. We also consider that the terminology used to describe the courts in which designated caseworkers appear may have an inhibiting effect. Generally, they are referred to as "early first hearings" (EFH). This could imply that they are solely for the first hearings of Narey fast-track cases and should therefore not encompass other categories of case within the scheme's criteria, for example, those that have been adjourned for sentence. Thirdly, we observed many EFH courts in which there was simply insufficient work. The available resources of the CPS and other criminal justice agencies are not being used effectively. In addition, available magistrates' sitting time is being wasted.

3.13 For these reasons, the anticipated benefits had not materialised at the time of our initial site visits and in particular Crown Prosecutors had not been relieved of the more straightforward work to deal with more difficult cases in the magistrates' courts and the Crown Court. On our revisits, however, we found that some sites had recognised and begun to address these factors more effectively. None of the reasons that we have identified are insurmountable and to some extent may be associated with the transition from the old system to the new. We are satisfied that, given full inter-agency co-operation, the CPS could derive substantial benefit from proper deployment of designated caseworkers.

3.14 In the light of our findings, we have identified where improvements may be made. For ease of reference, we have grouped our recommendations under the chapter headings in which they appear in the report. We recommend that:

Planning and preparation

(i) local TIGs should obtain input from lay presenters and supervising prosecutors in the planning process (paragraph 5.5);

(ii) Magistrates' Courts Committees (MCC), in developing training programmes for magistrates, should ensure that they receive adequate guidance as to the extent to which an early guilty plea should influence the level of sentencing (paragraph 5.18);

(iii)Justices' Clerks and the police should consult to ensure that records of defendants' previous convictions presented to the court are as up to date as possible (paragraph 5.20);

The implementation of the scheme by the CPS

(iv) the CPS Personnel Directorate should ensure that the foundation course for designated caseworkers provides adequate training on the appropriate law and procedures in traffic offences, especially the requirements of cases that are to be proved in the defendant's absence (paragraph 6.11);

(v) CCPs should ensure that the training of lay presenters includes the observation of Crown prosecutors presenting EFHs (paragraph 6.15);

The quality of review

(vi) CCPs should ensure that filtering systems are adequate to ensure that designated caseworkers review only cases that meet the relevant criteria (paragraph 7.6);

(vii) the DPP should give specific guidance on the approach to be adopted where a defendant indicates willingness to plead guilty in circumstances where the CPS is not in possession of sufficient information to facilitate an informed view as to whether the case satisfies the requirements of the Code. This should be done before any decision is taken to roll out Narey nationwide (paragraph 7.34);

(viii) TIG should review the file standard to incorporate requirements which will ensure that the CPS has available before the first hearing all the material necessary to support a properly informed decision and for presentation of the case to the court (paragraph 7.40);

(ix) CCPs should ensure, when advance information or voluntary disclosure is given, that a file record is kept of what material is provided to the defence (paragraph 7.45);

(x) CCPs should ensure that full file endorsements are made in cases reviewed by designated caseworkers, including:

• the recording of any decision to amend the original charges;
• the recording of any decision to discontinue or withdraw the proceedings; and
• whether a prosecutor has been consulted (paragraph 7.52);

Presenting cases

(xii) CCPs should ensure that the quality of case presentation is monitored (paragraph 8.40);

(xiii) CCPs should ensure that a Crown prosecutor is at the court site when a lay presenter court is sitting (paragraph 8.53);

Court listing

(xiv) local TIGs should conduct an analysis of caseload to ensure that an appropriate number of court sessions are allocated to Early Administrative Hearings (EAH) and EFHs (paragraph 9.10);

(xv) Justices' Clerks and CCPs should consult to ensure that the listing of courts allows the transfer of cases to and from lay presenter courts (paragraph 9.27);

The impact on resources

(xvi) CCPs should ensure that designated caseworkers are given sufficient review and case presentation work to utilise their resource fully and, so far as possible, occupy them on a full-time basis (paragraph 10.14); and
Justices' Clerks and CCPs should consult to ensure that listing practices enable lay presenters to present all categories of case within the scheme (paragraph 10.27).