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Monday Message 05.10.20

Chair’s Update:
James Mulholland QC





On Tuesday 29th September HM Crown Prosecution Service Inspectorate (“HMCPSI”) published its 2020 charging inspection; a thematic review of the quality and timeliness of charging decisions.

Many of the findings are very troubling. There has been a drop in the quality of legal analysis provided by the CPS in relation to charging decisions. In only 28.1% of cases was it regarded as good. Case analysis and strategy fully met the required standards in only 44.9% of cases.

Bearing in mind the significant issues surrounding unused material in recent times, the figures involving how such material was addressed were of particular concern. It was appropriately dealt with in only 56.6% of cases.

Overall, charging decisions in custody and bail cases were found to be timely in 56.1% of cases. This has plummeted from 87% five years ago.

These statistics are the result of massive cuts and the reduction of large numbers of legal staff over the last decade. Funding to the organisation was cut by over 30% or £1 billion in real terms during that period. CPS staff numbers fell 25% from 8,000 in 2010 to 6,000 in 2019.  However, the volume of evidence fuelled by technological advances is constantly increasing. One terabyte of data is received by the CPS each day; the equivalent of 1,500 CDs of material.

Whilst government has provided some resources to the police with the stated aim of increasing numbers by 20,000, albeit over a period of years, only a tiny fraction of the level of investment required has reached the CPS.

The consequences to the vulnerable who are compelled to travel through the justice system are all too often overlooked. For example, the CPS failed to comply with its own policies, in whole or in part, in 43.7% of cases. Of that number, 46.8% involved domestic abuse allegations.

In 2013 the MOJ admitted that “for victims and witnesses the criminal justice system can be baffling and frustrating and their experience all too often falls below the standards they might expect from a modern public service”; yet seven years later the situation is far worse despite the fact that we have the lowest charging rate since records began.

Lack of investment leads to even greater burdens being placed on already seriously over-worked CPS employees. In turn, this leads to errors and delays. The inevitable result is that victims of crime and witnesses are less willing to attend court and cases collapse at considerable cost to the taxpayer.

The consequences of worsening levels of performance at the investigation stage are reflected in Home Office figures published this July.  These show that 45.1% of reported allegations of violence “were most likely to result in victims not supporting police action”. Only 6.9% of these allegations resulted in a charge for the year ending 31st March 2020. Further, “two in five rape offences (41%) were closed because the victim did not support further police action against a suspect”. Only 1.4% of rape allegations resulted in criminal charges.

For those cases that continue, poor decision making in relation to unused material risks miscarriages of justice for innocent defendants. Once again, the impact on ordinary members of the public is devastating.

Nightingale Courts:

Whilst the addition of plexiglass to the existing court estate continues apace, the finding and use of additional locations to hold crown court trials remains painfully slow in comparison. Bear in mind, that 250 trial courts by the end of October will take us to a figure similar to that utilised last year when, because of restrictions on sitting days, only 12,000 jury trials were effective. We currently have in the region of 30,000 outstanding trials. We need these extra courts up and running now.


We had a meeting last week with the LAA in relation to the payment of cracked trials where the defendant pleads not guilty but a trial date is not set by the court and, thereafter, the case is discontinued or the defendant pleads guilty. Under the pre 17th September regulations, this presents a problem in that there is no basis for determining whether the fee should be based on the case concluding in the 2nd or final third before trial. The LAA now appreciates the point and is going to provide guidance as to a fair approach to be followed in such circumstances. We have emphasised that any ambiguity caused by the pandemic needs to be resolved in favour of the advocate. It was reiterated by the LAA during our meeting that, in relation to any case post 17th September, if a case concludes after a not guilty plea at the PTPH, a cracked trial fee will be paid whether or not a trial date has been set and regardless of what is said in the latest Guidance.

Working Groups:

Whilst many have come forward to join these groups, more individuals are needed from across the Circuits, particularly, in key areas such as those dealing with the Extension of Hours pilot and Retention. These are national issues and we need national input. Please help us.

CBA Young Bar Committee:

This is now up and running and held its first meeting last week. Please let us know the issues affecting you as a junior member of the criminal bar under eight years’ call by emailing [email protected]

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