Incompetent prosecutors cost us far more than money

Friday 20 October saw a pretty brutal broadside by the Times newspaper against the Crown Prosecution Service (CPS). Referring to CPS insiders’ claims largely from 2-3 years ago, The Times laid the following charges:

(1) That the CPS entrusted certain ‘senior’ level Prosecutors with very serious criminal trials despite it being clear those Prosecutors were not competent to conduct such trials properly;

(2) That a specific decision was taken by the CPS not to restrict these incompetent Prosecutors to lower level cases, because doing so might have triggered claims of unequal pay from more junior CPS staff who typically did that lower level work;

(3) That when these incompetent Prosecutors were finally dismissed by the CPS (essentially for incompetence) they were given redundancy payments out of ‘taxpayers' money’. Indeed the Times article gets a Front Page headline "Failed CPS lawyers are paid off with public money".

To deal briefly with the Times headline point - the fact that CPS redundancy payments were made, and made out of public funds, is surely of little consequence to the ambit of criminal justice. Redundancy payments are a pretty standard feature of contractual and/or employment rights. Nor should it ever really be deemed ‘newsworthy’ that a public service decides to make such payments out of public funds. Clearly, they cannot be made out of private funds, and the only other option is magic beans.

The far more interesting claims made by the Times are points (1) and (2). Their key source is a former CPS Manager Lynne Townley who says she was told in 2013 to continue using incompetent lawyers for serious matters. Even though it was known by the CPS that they were under-performing, these advocates were not to be re-assigned to less difficult work. Ms Townley said the instruction was designed to protect the CPS from possible legal claims from advocates at a lower grade, who might then have been able to argue that they were doing the same work for less money. Ms Townley says she responding to this instruction as follows:

“This approach ran contrary to our duties to the victims and the witnesses of crime.... We told him that we were not comfortable doing this, particularly in cases involving rape and serious sexual assaults”.

The CPS has officially denied this claim from Ms Townley, which she raised during her own claim for constructive dismissal against the CPS (her claim failed, although the finding on this point is unclear).

However, the Times also quotes Cate Moore, former head of CPS advocacy in London who conceded to a 2014 investigation that there was a “potential risk” in assigning a senior advocate to less complex work. “There are potential claims..... We try to mitigate that risk” she said.

Meanwhile HHJ Anthony Morris QC, who heard an attempted murder trial prosecuted by one of these incompetent advocates (it collapsed at the Old Bailey), wrote to Chief Crown Prosecutor to complain about him in no uncertain terms:

“This trial was a gross waste of public money which arose almost entirely because the CPS chose to instruct someone who was not competent... I do not consider (the Prosecutor) to be competent to prosecute a case such as this, and I consider his classification (as a senior prosecutor) should be reviewed by the CPS as soon as possible... From what I have been able to discuss with other judges is that people who are not necessarily competent to prosecute cases are being asked to do cases which are outside their ability.... Are judges to stand by and see miscarriages of justice occur? Is the judge just to say.... that this is bad luck as far as the victims are concerned?”

The specifics of this particular Prosecutor remain disputed, but the broader point is that the CPS had continued to entrust serious cases to a number of advocates who were under investigation for serious errors, including misconduct. If this was indeed done out of a fear of being sued, it means the CPS' own financial concerns trumped the need to give the alleged victims of crime access to justice.

The inescapable context is of course that, since 2010, the CPS has endured budget cuts of 25%.

Rebecca Hitchens of Rape Crisis states “While the CPS has made improvements it does continue to be under-resourced and has very high caseloads, which leads to delay”.

Michael Turner QC, former Chairman of the Criminal Bar Association puts it more bluntly “The CPS is completely under-funded and unable to provide the support their advocates need. There are disasters all over the place, it’s happening on a daily basis”.

It must be fair to conclude that, on certain occasions, under-performing lawyers have been knowingly assigned by the CPS to prosecute very serious cases such as serious sexual offences, attempted murder, and fraud. So, whilst The Times makes a familiar and simplistic point about ‘redundancies funded by the taxpayer’, the more startling point is that genuine victims of crime are being denied justice directly because of the financial pressure placed on the CPS. It is easy to make this claim in the abstract, but harder to find specific evidence of it happening.

Of course, let us apply equal cynicism to the newspaper itself. There might have been other motives behind this investigation by the Times, and it is unlikely that the London CPS are on the Christmas card list of the Murdoch Press. But in terms of showing that CPS budget cuts lead directly to injustice, the Times are to be commended for locating a smoking gun – which is more than can be said for certain CPS advocates.

At Brett Wilson LLP we conduct all manner of criminal defence work, from minor offences right up to the most serious and complex trials. If you have concerns about the standards or fairness of a criminal prosecution, click here to see how our crime team can assist.