On 29 September, HM Crown Prosecution Service Inspectorate (HMCPSI) published its charging inspection report which examined 1,400 cases, being one of the largest file samples examined by HMCPSI to date.
The report sought to assess the level of confidence the public can have in the Crown Prosecution Service (CPS), and its ability to deliver “high quality, effective, fair and timely charging decisions”.
While HMCPSI found that the public could have confidence that the CPS’s decisions to charge or to take no further action were correct, many other areas needed “significant improvement”.
The report revealed that there has been some marked improvement in the number of charging decisions that were Code test failures, meaning that “no reasonable prosecutor” would have made the same decision. In 2011 the failure rate rested at 11.4%, but by 2015, it was 9.1%. Now, according to the testing sample in the report, 97.1% of charging decisions were code compliant.
Another area which has seen a performance improvement, is the charges selected by prosecutors. Back in 2015, only 79.7% of cases where the prosecutor decided to charge, had an appropriate and proportionate offence selected. By comparison, the percentage rose to 82.4% in this report. That being said, HMCPSI also highlighted that 4% did not meet the standard, and 13.6% only partially met it.
Ultimately, HMCPSI concluded that complainants, witnesses and the public can have a “relatively high” degree of confidence that the CPS chooses the right charges and prosecutes the “right cases”. Moreover, it determined that in both of these areas, the CPS reflected the wider public interest.
While praising the CPS for making the right decisions the majority of the time, elsewhere HMCPSI found the CPS to be lacking. The report notes that inspectors found that some CPS lawyers failed to demonstrate a level of “trade craft” or a “thinking approach”. Stemming from this, the inspectors found a significant lack of grip on casework. Specifically, it was found that in 19.2% there was a poor grip on cases, and further to this, in 22.2% of cases, the CPS added either “little” or “no” value.
In addition to this, the report notes that there has been a deterioration in performance related to analysis and case strategy, since the 2015 inspection. In this report, HMCPSI outlined that the CPS only fully met expectations for analysis and case strategy 44.9% of the time.
The report also highlighted that CPS Direct lawyers often outperformed lawyers who worked in CPS Areas, which took full control of bail cases back in 2016, and performs a plethora of tasks. Comparatively, CPS Direct only provides charging decisions.
When the report measured timeliness, it was found that only 56.1% of charging decisions, custody and bail, were found to be timely. This is a dramatic fall from the percentage recorded in the 2015 inspection, which stood at 87%. Meanwhile, even fewer charging decisions were timely in Area-charged cases, which were timely only 47.8% of the time. This again shows a stark decline from 2015, which found charging decisions to be timely in 63.9% of non-custody Area-charged cases.
Commenting on these disappointing figures, James Mulholland QC, chair of the Criminal Bar Association, argued that “inadequate funding” of the CPS by the government was the root cause of these failures. He said: “These sorts of egregious delays and failures in quality standards are a poor reflection on our criminal justice system and, sadly, indicative of a decade of cuts which has taken about a billion pounds from the CPS budget”.
Additional concerns were raised around the quality of the case files provided by the police, who had failed to include key evidence.
Shockingly, it was found that only 43.6% of the police file submissions complied with the National File Standard (NFS). Moreover, the failures predominantly related to missing key statements (19%) and missing exhibits (17%), which mostly consisted of CCTV or body worn video footage.
The report found that file submissions were particularly poor in cases which resulted in no further action (NFA). Here, only 34.4% of submissions were NFS compliant. It was also found that sensitive case submissions were more compliant (48.3%) than non-sensitive cases (39.9%).
According to a report by The Telegraph, the CPS noted that these poor quality case files have a significant knock-on effect, causing “delays in making decisions and a waste of valuable time”.
Reflecting on these figures, a National Police Chiefs’ Council spokesperson, said: “Police forces are working hard to ensure that the relevant material is transferred to the CPS to enable them to make timely and appropriate decisions”. They added: “A number of forces have made substantial progress in this area, but we recognise that there is more to do to ensure swift and effective justice for victims and witnesses”.
Reviewing the CPS’s performance overall, although some improvements were noted, HM Chief Inspector Kevin McGint, said there were many areas that needed to see change: “There has been a marked improvement in getting the charge right at the outset, which is important, but there is significant room for improvement in respect of the quality of prosecutors’ legal analysis and the timeliness of their decision making,” he said.
Subsequently, HMCPSI made a number of recommendations for the CPS to take on. These recommendations included the development of a nationally agreed standard of what a “good” Manual of Guidance Form 3 looks like, for improved consistency and overall quality.
In response to the poor quality of analysis and case strategy, the report also recommended that mandatory classroom training should be created and delivered for all Area prosecutors delivering volume charging. Specifically HMCPSI suggested a strong focus on proactive case analysis, and trial strategy.
The report also recommended that a more “regular and robust” Area quality assurance regime should be devised. This it says, should be done in order to ensure that both the legal quality of charging decisions, and the value added by the CPS improves.
Lastly, HMCPSI stressed the importance of the CPS reviewing the policies that are commonly applied at the pre-charge stage.
Responding to these recommendations, a CPS spokesperson said: ‘We are encouraged the HMCPSI found we are charging our cases correctly in 97% of cases but know there still remains room for improvement. We have accepted all the report’s recommendations including reviewing our internal quality assurance and policy guidance material to streamline information and make sure it is clear and concise; putting mandatory training in place and working on sharing best case work practice”.