Thursday, July 30, 2009

Debbie Purdy, Dignitas and the DPP

WARNING: This post may contain traces of moral issue. These are murky waters for a lawyer, and I cling gratefully to a liferaft of certainty, and the only thing I am qualified to discuss in the whole affair; today's judgment from the House of Lords. I would apologise for the length of this post, but I feel the importance of the issue merits thorough discussion. Plus, I run the show, so I can do what I like.

The House of Lords have just handed down their judgment in the case of Debbie Purdy. My first attempt at typing that last sentence actually included the name "Diane Pretty" in place of "Debbie Purdy".

For those of you who have been living under a rock, Debbie Purdy suffers from a debilitating motor neurone disease that is not currently curable. She says that it will eventually reduce her quality of life to the point where she will commit suicide rather than live on. To do so, she plans to travel to the Dignitas clinic in Switzerland, which provides lethal cocktails of barbituates to people in her position.

For those of us subject to this jurisdiction, assisting suicide is a crime. Many Britons have travelled to Switzerland to end their lives in the Dignitas clinic, and most travel with family members. Of these family members, none has been prosecuted.

The Code for Crown Prosecutors contains two tests, which can be paraphrased thus: Is there sufficient evidence to give a realistic prospect of conviction? Is it in the public interest to prosecute? Of the cases submitted to the CPS by various police forces, we have declined to prosecute on the basis of the evidential test on a number of occasions, but have declined to prosecute on the basis of the public interest test only twice.

Once, in the case of a paralysed but otherwise healthy young man, the DPP made the decision personally, and made his written reasons public. He has, however, refused to issue guidelines in relation to prosecuting this particular offence. This case is the final stage of Debbie Purdy's long-running legal battle to force him to do just that. And she won.

To quote from the judgment (at some length):

"[Debbie Purdy] wants to be able to make an informed decision as to whether or not to ask for her husband’s assistance. She is not willing to expose him to the risk of being prosecuted if he assists her. But the Director has declined to say what factors he will take into consideration in deciding whether or not it is in the public interest to prosecute those who assist people to end their lives in countries where assisted suicide is lawful. This presents her with a dilemma. If the risk of prosecution is sufficiently low, she can wait until the very last moment before she makes the journey. If the risk is too high she will have to make the journey unaided to end her life before she would otherwise wish to do so".

So, the law lords duly concluded that offence-specific guidelines should be published, as a failure to do so left such a grey area that the uncertainty effectively interfered with Debbie Purdy's right to life, accorded by article 8 of the European Convention of Human Rights. I commend the judgment to you in its entirety, it is worthy reading, not least because Lord Phillips of Worth Matravers took the opportunity to remind people of a judge's role:

"It must be emphasised at the outset that it is no part of our function to change the law [...]. We do not venture into that arena, nor would it be right for us to do so. Our function as judges is to say what the law is and, if it is uncertain, to do what we can to clarify it."

Well said, my Lord, well said.

For those who care, my personal view is that anyone who travels to a foreign country knowing that their loved one holds only a one-way ticket is a brave soul indeed. To be present at the moment of their death is horrendous enough, but to contemplate it for weeks or months before the appointed day arrives, and then to hold to their lips the fatal draught, is beyond my contemplation, and I pray that I never have to make such a journey.

At the risk of opening a king-sized can of worms, I would be curious to know what my readers make of this.

Tuesday, July 28, 2009


I've figured out why so many people were having trouble posting comments. It was all down to technical error 432A; "operator incomptence". It's hopefully fixed now, and people should be able to comment freely and anonymously, should they so desire.

Money, again.

It appears, reading back over the last few posts, that I've become a little side-tracked by money, and for that I apologise. I certainly wouldn't want anyone to get the idea that lawyers are fixated by the subject. But, I beg your indulgence once more, before I get on my high horse, and move on to advocacy within the CPS.

Best-value tendering. Three words (despite the best efforts of that wretched hyphen) to strike fear into the heart of any lawyer. They should also scare any member of the public concerned about being arrested for some spurious reason, i.e., all of us.

The concept, for those lucky enough to remain outwith the clutches of the criminal justice system, is this: firms will bid in an auction for the right to conduct defence work for people who can't afford a lawyer, and that work will then be dished out in parcels.

Firstly, the idea that the state will pay highly trained lawyers to try to put people in jail, and then pay highly trained lawyers to try to keep those same people out of jail, is a brilliant one. It is a ringing endorsement of democracy, and the continually operating proof that the state is not tyrannical, that justice is not arbitrary, and that justice is for all, regardless of financial means.

It sums up the very British emphasis that our legal system places upon fair play. We even have a legal principle called "equality of arms", which is the legal equivalent of divvying up ammunition before going over the top.

Alas and alack, someone somewhere noticed that we spend rather a lot per capita on legal aid in comparison with our neighbours -- almost £30 per person per annum, compared to about £4 in France. As legal insurance goes, it's pretty good.

What's this auction about then? Why do lawyers need help driving up prices? Shurely shome mishtake? Well, some clever little civil servant has had a brainwave. Dutch auction. Reverse auction. Firm A has a look at its payroll and books, and says "we can handle 100 cases a year for £25,000".

That's a made-up number, by the way, and I apologise to those among you who have recently redecorated their monitors in a shade of Tetley.

Anyway, Firm B then has to say "Well, we'll do 200 cases for £25,000". Or, "We'll do 100 cases for £12,500".

The result is a race to the bottom, in terms of quality and service. So guess who suffers? You. The poor sod who's been arrested and needs some decent advice. This reverse auction was tried with home care for the elderly, and the results were shocking and immediate, with one firm losing its licence to provide home care shortly after winning a contract, so poor was the "care" provided. The winning rate was about £7 an hour. Cooked home meals became sandwiches and crisps bought on the way over to Doris from Gladys, simply because staff were so stretched.

A joint response from the Criminal Bar Association and the General Council of the Bar pointed out that this system is actually "price-competitive tendering", and isn't used anywhere else in the world in relation to legal services, except in the USA. Even the Yanks realised that if the system preserves the quality of representation, it didn't produce the savings sought (Chapter IV of the Department of Justice Special Report, cited in the above link).

What a surprise.

Monday, July 27, 2009

Alice in Wonderland

Crimeline is a regular email update service, provided free of charge by those responsible for the Crimeline website. It covers important new caselaw and changes in sentencing practice, among other things. The latest email reports that the independent financial consultants, Europe Economics, have had a little look at the CPS justification for using in-house advocates. Their full report can be read here.

The executive summary: CPS haven't put forward the true cost of in-house advocates for comparison.

The thinking goes like this:
  1. Barristers charge fees

  2. We could employ barristers, thus saving the fees

  3. Err, that's it.

Some of my readers may have noticed that the rest of the world is out-sourcing, sub-contracting and otherwise removing employees from their payrolls. Even the typists in the office here are employed by a service company. The cleaners by a different company again. While most companies are doing what they can to rely on short-term contracts with no obligations towards the provider of that service, we're doing the exact opposite.

At the risk of sounding like a stuck record, CPS employees need pensions, sick pay, holiday pay, offices, training, development opportunities, etc. etc. Barristers don't, they get their fee, and that's it. They're on their own for everything else.

The CPS have allowed 10.2% on top of the salaries of the in-house lot to meet fixed costs. Doesn't seem like enough to cover long-term pension liabilities, let alone the running costs for a couple of huge pieces of prime central London commercial real estate.

I suppose we will shortly see just how deep the rabbit hole goes.

As a brief p.s., CPS offices across London are now re-locating to police stations, despite "co-location" being one of the justifications for the creation of the CPS -- we wanted to be seen as having independence from the police. Once the big buildings are "off-budget", we will never be able to have our own offices again, as the purchase would be an enormous outlay, and it would look for all the world like money was being spent, and that just wouldn't do, would it?

Saturday, July 25, 2009

Filthy lucre

This is something of a "hot potato" right now, what with our collective credit being crunched. The CPS is under intense pressure to save money -- millions of pounds across the country -- so that Gordon can save the universe, or something.

Of course, like any government department right now, we are already pretty tightly stretched. Over-spends abound. And yet further savings are demanded. The inconvenient truth is that prosecuting crime needs lawyers to make decisions. Lawyers are relatively highly trained, and need appropriate salaries. CPS salary bands are roughly as follows:

  1. Legal trainee (pupil barrister or trainee solicitor) -- £20k

  2. Crown Prosecutor -- £29k

  3. Senior Crown Prosecutor -- £36k

  4. Crown Advocate -- £50k-£70k

These figures are approximate, of course. Not too shabby, is it? There's a bit extra for being in London, although "London weighting" extends as far south as the London Borough of the Isle of Wight [sic]. There's a bit extra extra for being in Inner London, i.e. London as most people think of it.

And of course, we get gold-plated final salary pensions, flexi-time, generous annual leave, sick pay, holiday pay, child care vouchers, etc., etc., etc., all of which cost money. Lots of money. Especially the pensions.

But it's all O.K., and we're going to make the savings, because we've had an idea -- we're just going to get rid of the lawyers. Yes, it's the great DCW debate! Let's get designated caseworkers in, make them do the lawyers' jobs, but pay them less! Brilliant.

And while we're at it, we'd better not use the independent Bar, because they cost us money, too. The cheek of it! Let's just employ some barristers, and we can save all those nasty fees.

Actually, this links pretty nicely to the next thing I wanted to talk about -- the CPS advocacy strategy, the employed Bar, and designated caseworkers.

Thursday, July 23, 2009

The "OBM"

As promised, I now move to a review of the infamous "OBM", following hot on the heels of my last post -- the anger has carried me through the evening, my faithful companion has long since started dozing on the sofa, all four legs stretched out, looking like a smaller, less stripy version of that ultimate colonial trophy, a large dead-stripy-animal-rug.

The Optimum Business Model, which is so far proving somewhat sub-optimal, is as follows. Rather than having a number of lawyers each being responsible for a number of files, according to specialism (stop giggling at the back), talent (I mean it), working hours (right, stand outside), the CPS has decided, after lengthy and expensive consideration, that the best thing to do, is to not allocate any files at all. So we all toddle off to court three days a week, and on the fourth day, we sit at a desk known as the OBM desk. To one side is a pile of files, all with varying amounts of work required. To the other, an efficient team of crack administrators (who said you could come back in?).

I dump myself into the sagging chair (you need a back complaint to get a decent chair out of this lot) and begin. I may need to respond to a defence letter, I may have to decide whether to proceed with a prosecution when a victim doesn't want to know, I may have to decide whether to apply for a witness summons, I may have to serve primary disclosure, or I may even have to dewarn witnesses because Billy has now remembered that yes, despite his complicated and involved story about Shandeece and Tyrone's big bust up, and why the baby had its ears pierced, and why he ain't done nuffink, he did as a matter of fact punch Johnny and nick his shiny iPod, and would like to have some credit for owning up to it and pleading guilty six months later and three days before the trial, please.

Of course, under what I will call a "traditional" work allocation system, as used in defence firms the length and breadth of the country, I would be at least familiar with a file, and simple queries can be resolved in seconds. Under the OBM, life becomes one endless round of surprises. So I get a letter saying "We represent Fred Splebbins, and note that Jane Splebbins has made a withdrawal statement. Do you intend to proceed with this prosecution? I would be grateful to hear from you by return".

Under the traditional system, I know that I intend full well to continue, because the police saw her injuries, 19 year old Son of Splebbins saw the whole thing, and has had enough of Dad smacking Mum about when he's had a few. Or that I have to throw my hand in because we have no case beyond Mum's bare assertion (and accompanying 10-page list of pre-cons for perverting the course of justice and wasting police time).

So I need to read the file from cover to cover, because I know nothing about it. I need to consider Fred's antecedents, the family circumstances, Jane's views and antecedents, and if I decide we should carry on, I need to know whether we can do without her (considering, of course, recent ECHR and House of Lords jurisprudence on hearsay and victimless prosecutions), or whether I should compel her to attend by way of summons or even warrant.

Which, as you can imagine, adds ever so slightly to my workload. Unsurprised, of course, is the weary defence hack, explaining the basis of an offered plea to the sixth prosecutor to have touched the file.

But what about the coalface? Where intellects collide, or at least bump gently into ignorance, before drifting off into indifference? When I trot up to the local court, have I had the privilege to see any of the briefs I am about to prosecute? Err, no. Sorry, Director. But on the bright side, picking things up at the last minute is excellent practice, and sharpens the mind, or so I'm told.

And the fifth day, of course, is reserved for Crown Court casework, which, for the time being, is allocated properly, and therefore (usually) done properly.

P.S. the old hands will remember "team working", which was the OBM by any other name, and was binned a few years back, and any hands will remember "cradle to the grave", which was a traditional allocation system, and was being pushed as recently as two years ago. Round and round we go...

Timely rubbish

When I arrived at my desk this morning, and found it covered in a thick layer of files, I was, naturally, a little unimpressed. But my sour mood was suddenly displaced when I checked my inbox, and found an email from our dear leader, the DPP, launching "The Public Prosecution Service: Setting the Standard".

In short, I was wrong to be gloomy. The chaos and stress that then followed for the rest of the day was in fact "the strategic positioning of the prosecution service in the modern environment". Furthermore, I was wrong to be anything other than kind to the CPS, as we "have risen positively to the demands of change. But it is time to bank those changes and move on".

Does one "bank" changes? One certainly changes banks, usually when one's financial advisors suggest it to one over tea. Arguments about appropriate verbs aside, I can see what he means; "that last chap did a lot of work, and there's some credit in it for me". Actually, that's a bit unfair. We have a whole department devoted to churning out this rubbish, and the DPP probably had very little to do with drafting the document. We even paid an external design firm to produce the glossy leaflets.

In any event, Keir Starmer and Ken McDonald are both extremely well regarded individuals at the Bar, and for good reason. Keir Starmer did a lot of pro bono (sorry, that's latin-speak for volunteering) for these two. You can still see a video of a youthful DPP explaining his involvement on that website. His career has been stellar since. Ken McDonald has gone back to his old chambers, shared with Miss Booth QC, wife of former PM (and future overlord of Europe) Tony Blair. Ken seems to have some very sensible views on issues of recent concern.

I seem to be having trouble concentrating on what I'm saying. A marvellous quality in a lawyer. So anyway, from one premier league defence-human-rights-type-chap to another, and the organisation rumbles on.

Out-of-court "disposals" are on the march, onwards and upwards. The DPP acknowledges in the PPS press release that the challenge is clear for the need for "out-of-court disposals to be properly regulated, consistently applied, and publicly transparent" in order to maintain public confidence.

Here's a thought Director, if parliament wanted this sort of oversight, why did they not not make some sort of rules governing maximum penalties, issue some sort of guidelines for the most common situations and circumstances, and then get some respected members of the community to give up some of their time to decide what to do? Why didn't parliament want people watching the whole thing if they so choose? Hey, if parliament wanted public confidence, parliament may even have wanted to add a bit of solemnity to the proceedings, parliament could even have required that we stage the whole shebang in a formal setting, or even make people dress up in suits and other formal attire. People would know what was going on, and everything. So the way forward is clear -- don't tell a soul, and let's crack on with dishing out the cautions.

And just as my blood pressure dips into the safety zone, so, in the middle of all that press-release nonsense that plopped into my inbox today, my eye alights on the bit which seems to have been crafted to irritate me personally: "Today, public prosecutors prosecute their own cases".

Right, that's it. I can't take any more. Full review of the "OBM" to follow...

Wednesday, July 22, 2009

By way of introduction...

For the benefit of those amongst us who have the good fortune never to have had dealings with the CPS, the Crown Prosecution Service is the body responsible for criminal prosecutions in England and Wales. It came into being in '86, employs a very large number of people, and consumes a very large amount of taxpayers' money. The head of the CPS is the DPP, or Director of Public Prosecutions. Areas around the country mirror police constabularies, and are headed by Chief Crown Prosecutors. The people you see in your local magistrates' court are several rungs down the ladder from these lofty individuals.

Broadly speaking, the process of a crime through the criminal justice system should be as follows:

  1. Crime reported to police

  2. Police arrest suspect

  3. Police gather evidence

  4. The CPS are passed the file of evidence

  5. A lawyer considers the evidence, and the public interest in a prosecution, before deciding what charges are appropriate, if any.

  6. Suspect charged and appears before the courts

  7. Plea entered

  8. Trial or sentence, as appropriate

I am professionally involved in rendering stages 4 and beyond as Kafka-esque as possible.

In short, the CPS is universally disliked by the other parts of the criminal justice system. The police hate it when they arrest a well-known villain, who is pointed out on a street corner by the victim of a mugging, and we don't prosecute. The mugging victim probably isn't too impressed either, but at least he gets a polite letter not really explaining anything -- more of this anon. The courts hate it when we mess them about. The judges and magistrates hate it when we fail to comply with orders. The defence hate it when we don't comply with our disclosure obligations, change our minds at the last minute, and generally give them the run-around. Defendants hate it when they are in prison for 2 months before someone with a grain of sense drops the shoddy case that had previously been cobbled together.

Before I am instantly pigeon-holed as disaffected amd cynical (perish the thought), I should point out that I consider prosecuting criminals to be an essential part of a functioning society, and is something that must be done well if justice is to exist. It is also extremely satisfying to have someone thanking you through tears of relief after a long trial, following which their violent and abusive partner has been convicted and carted off to the cells.

I now fear that technical language will occasionally be unavoidable, but I shall do my best to keep it comprehensible for the lay reader. I shall also strive to avoid latin phrases, which are a pretentious lawyerly affectation, and should be kept de minimis.

And so to business. I will touch on the following topics in the posts to come: prohibition / legalisation, prison, rehabilitation, civil liberties, police action, the essential role of coffee, CPS policies, communication with victims, community engagement, proposed legal aid reforms, Labour's criminal justice policies, the Tories' criminal justice policies, the Lib Dems' criminal justice policies, and just for a laugh, the BNP's criminal justice policies.

If readers wish to hear an extremely unofficial, and entirely honest CPS viewpoint on a particular matter, with the obvious exception of real cases, then do mention it.


I am a lawyer employed by the Crown Prosecution Service. I shall not venture any information beyond the following; I spend a lot of my time in court, and the rest in a large inner-city police station.

I intend to use this blog to keep a record of day-to-day life within the CPS. This will be a warts-and-all account, untouched by the press department, and most certainly not "spun". I intend to include all of the frustrations, difficulties, and annoyances of a career spent in public service, and within the criminal justice system.

Whilst I will discuss actual cases, I will add bits, take bits out, make bits up, change names and places, and generally prevent people in real life from becoming identifiable. In adopting this model, I shamelessly poach the blogging style of Bystander and Inspector Gadget, neither of whom I know personally, but both of whom I hold in high regard, and commend to you.

I shall endeavour to inform, and perhaps, with a little luck, even amuse my reader. Your comments and suggestions are welcome, and I will also try to read all of my emails promptly. So that there is something of a level playing field, I propose to set the scene with a brief introduction to the CPS and the criminal justice system. And away we go...