Transcript of public session: Mr R Barclay of the Crown Prosecution Service

Wednesday, 31 March 2004
11.45 am

Sir William Morris: Good morning, Mr Barclay, thank you very much indeed for coming. Apologies for keeping you waiting.

Mr Barclay: Not at all.

Sir William Morris: Can I say again thanks for accepting our invitation to attend the Inquiry, and for giving evidence. We actually have your written submission, and we are very grateful for it. I do appreciate that for some of our witnesses, any process of this nature may seem to be somewhat daunting, so I thought it would be helpful if I set out very briefly how we propose to conduct the hearing, but first, let me introduce myself and the other members of the panel.

I am Sir Bill Morris, recently retired General Secretary of the Transport and General Workers Union. As you can see, I have two other members of the panel: first is Sir Anthony Burden, who recently retired as Chief Constable of the South Wales Constabulary, after a very long and distinguished career in the police service. Next to me is Miss Anesta Weekes, who is an eminent barrister and sits as a recorder and part-time chairperson of employment tribunals. She was also counsel to the Lawrence Inquiry.

Mr Barclay, as you know, we have been asked by the Metropolitan Police Authority to conduct an independent inquiry into professional standards and employment matters in the Metropolitan Police Service. Our focus is in fact the MPS as an organisation, and not the individuals who make up the organisation.

The inquiry that we are conducting is inquisitorial; it is not by nature or character adversarial. We are very keen to enquire into the issues raised by our terms of reference so that we can make appropriate recommendations for further good practice, rather than concentrating on criticisms of the MPS or the organisation.

To help us in our task, we are keen to hear from all our witnesses not just what might be wrong with the MPS but what is right with it, but most importantly, we are looking for suggestions as to how things which are deemed to be wrong can in fact be put right.

For the record, let me say that a transcript is being taken, so that we have a proper record of the evidence that has been provided to us, and this will be posted on our website later today.

At the end of these introductory comments from me, Miss Weekes will lead on the questions to you, followed by any supplementary points that I may have or indeed Sir Anthony may have.

At the conclusion of our questions, I will, as we do with every witness, offer you the opportunity for a brief closing comment.

In your written submission, which will be posted on our website, you have given us some important information. You have, for example, indicated to us, by way of introduction, the statutory role of the Crown Prosecution Service, the CPS; investigating allegations of police conduct is another area on which you have enlightened us. You have given us a description of the type of quality of cases referred to the CPS by the police service itself, and there are comments about the CPS decision-making process that we find extremely interesting. We would like to ask you some questions about that material.

Before we commence the questioning by Miss Weekes, for the benefit of our transcript note, I wonder if you would mind formally introducing yourself to the Inquiry.

Mr Barclay: I am Rene Barclay, the Director of Serious Case Work at the Crown Prosecution Service in London.

Sir William Morris: Thank you very much indeed. As I indicated, Miss Weekes will in fact be leading the questions, and I pass you straight over to her questioning.

Questions by Miss Weekes

Miss Weekes: Good morning, Mr Barclay. Can I deal with perhaps three areas where the Crown Prosecution Service will play a role in relation to cases referred to them by the Metropolitan Police? All three of those points are very helpfully dealt with in your submission.

First of all, it is your role, what it is the Crown Prosecution Service does when they receive a request to look at a set of papers; secondly, the issue in relation to the investigation of that case, and procedural delay.

Mr Barclay: Yes.

Miss Weekes: So first of all, can I deal with, as it stands at the moment, the procedure when something is delivered to you, it may well be actually an oral request, or it could be a set of papers, from the Metropolitan Police, in relation to a police officer who they think will or may be prosecuted.

There is a service level agreement in existence which will soon change, is that right?

Mr Barclay: There is. I did not originally copy it to you, because it is in many ways out of date, because it predates a new structure. Given that caveat, it broadly represents and reflects the position that we aim to ensure that cases are looked at by prosecutors who have no connection with the officer under suspicion, and we achieve that through geographical location and allocation.

When a case is received, it will normally be received by one of the professional standards directorates who are responsible for investigating the case, and that will be accompanied by a report, together with the statements and exhibits which have been gathered.

Our job then is to review the case and to decide whether there is sufficient evidence in accordance with our code which requires us in every case, not simply in a case involving a police officer, but in every case, requires us to carry out a two stage test.

First of all, we have to be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. If there is not, then that is the end of the matter. If there is sufficient evidence, we then have to go on to decide whether the public interest requires prosecution, and if the answer to both questions is yes, then we will – currently, we advise the police, provide advice to the investigating officer to prosecute.

The legislation coming through this year will actually provide us with a statutory responsibility for charging, but effectively, for police cases, it will remain the same, because the advice is invariably accepted.

Miss Weekes: Right. Can I just interject there by saying when the changes come about to the service level agreement, one of the main things I suspect that you will want to ensure are kept is the independence of the Crown Prosecution Service personnel, so the person who gives the advice will remain independent by area or knowledge of the policeman at all, because that obviously gives public confidence.

Mr Barclay: Absolutely.

Miss Weekes: Can I ask you just a little bit about your relationship with the Metropolitan Police Service and the getting of the advice? From an officer's point of view, they are concerned about getting the advice quickly, and that the advice is seen to be fair advice given on the basis of what there is on the table.

Often it does not filter down to the officer – this is obviously not your problem, but it does not filter down to the officer what is going on between you and the Metropolitan Police at that stage.

It is difficult for you, but I think it is helpful that you are joining the debate; is there anything that you might want to comment on about that first stage, as it were?

Mr Barclay: There are cases in which investigating officers have indicated that the suspect officer is particularly concerned about the length of time; I have known that happen.

All that we can try and do is do it as quickly as possible; because of the way the legislation is framed, it means that the steps have to be undertaken, and there may well be cases where although there is evidence on the papers, we have to advise the police to pursue all reasonable lines of enquiry, which might mean – take, for example, a case involving the use of a truncheon.

It may well be that in such a case, it would be necessary to get some form of expert evidence about it. There may be other forensic evidence that one might need to get. All that takes time, and I know that investigating officers from the directorates have a heavy caseload, and all that adds to the time.

I do not know whether this happens or not, but I can see no reason why the general nature of the investigation cannot be provided in terms of an update to the officers under suspicion, or indeed to those representing them, as they invariably will be, at the interview which will have taken place. That perhaps is probably the best method of keeping the suspects' representatives informed, so they can in turn keep them informed.

Miss Weekes: Yes. You serve a general nature, because it is true to say that the majority of your advice and what you do – "Please go along and get an expert", and the expert is got – would be disclosable.

Mr Barclay: Certainly, yes.

Miss Weekes: Public interest immunity matters would obviously not be disclosed.

Mr Barclay: No. As a general rule, until a decision is taken finally on whether to prosecute a case, we would not disclose any material to anyone. When a final decision is taken, if it is to prosecute, you are absolutely right, everything is disclosed in accordance with the 1996 Act.

If a decision is taken not to prosecute, it will occasionally happen that there may be requests made for material, and that will either be dealt with by the police themselves, or if it is a request to us, then we will deal with it on a case by case basis, depending upon why it is sought.

Miss Weekes: One of the suggestions for change to improve on delay is a designated unit within the CPS areas that will deal with referral of cases from the CPS. Will that genuinely speed up matters, do you think?

Mr Barclay: Well, I am fairly confident that it will. Reviewing police cases is slightly different from reviewing very many other cases, because a lot will turn on whether there was reasonable suspicion, and that is often a very difficult issue to grapple with. One is looking in virtually all cases at powers that the police have, intrusive powers which they rightly and properly have. In many cases, the issue is: well, has that power been properly exercised? Or in our case: can we prove to the criminal standard that it has not been applied, or that it has been misapplied, excessive force when only reasonable force is permitted?

So they do call for some judgment, careful judgment, which will often turn on a power of arrest or an intrusive power. By centralising the handling of police cases within London, and I can only speak for London, we hope that – we are confident, in fact, that we will be able to spread the expertise amongst a group of lawyers who we will rotate over a period of time, so that people will come out and go into the unit, and the management of the cases can be more focused; and of course information about any case in London can be obtained fairly quickly through one unit.

But we have to ensure that however the unit is staffed, it preserves the independent issue which, as you have already pointed out, is quite rightly absolutely crucial to public confidence, and also so that we are in a position to say and confirm that this case has received a proper and independent review.

This is particularly important because many complainants will write in to us to disagree with the decision, if it is a decision not to prosecute, because under the current arrangements, we have to let them know in writing, we write to them to tell them what is happening, and they can often respond and want to know why – will want to know more, and obviously, we need to be very clear, and we will respond. But we need to be absolutely positive and clear that there has been a transparent and independent review of the case, which there will be.

So the key to this unit is to ensure that however it is arranged, it is arranged in a way that preserves that independence.

Miss Weekes: You have just described a very important process whereby you write to the complainant to say what has gone on. What would be the criticism or what would be wrong with – and there might be, which is why I am asking you – an ability for the Crown Prosecution Service to write to the officer direct, after a particular period of time, to say, "It has now been four months, this is where we are at, this is why I have not yet made a decision"?

Mr Barclay: I think I would need to be persuaded that there would be a reason to do it in a case involving a police officer, and a need to do it in every other case; in other words, I do not see that a police officer, albeit that there are obviously serious consequences to an officer in many ways – but I think there are other suspects who also would be entitled to say, "Well hang on a minute, why is an officer receiving this particular treatment in terms of management update?"

So it would partly be a resource issue for me. But also, if it were done for officers, it would have to be done for everyone, and that would be fairly intensive.

I mean, the current arrangement is that often, an investigating officer might call and say, "What is happening?" It may well be that we are in the middle of reviewing it, it may well be we need some more information. And we will keep the officer informed, where we are able to give them a fairly precise idea of how long it is going to take.

If the temperature gets high at the police end, and they will phone up and say, "Well, how long is it going to take, because the solicitors or the officer concerned is worried about it?", we will try and deal with it that way, and give a guesstimate as best we can of when we are going to arrive at a decision.

Miss Weekes: So really, the onus is on the investigating officer, somebody within the Met to keep the officer complained about up to date, really?

Mr Barclay: Yes.

Miss Weekes: Can I move on to the position that will change slightly with the Police (Reform) Act?

Mr Barclay: I am sorry to interrupt, I noticed this morning that I have given the wrong year, I said it was 2003, and it is 2002. I typed it, so it is my fault.

Miss Weekes: That is all right. These typing errors do occur. I certainly took it as a typing error. Will there be a fundamental change at all? I have looked at the statute, and it does not appear to me that it would be, do you happen to agree with that?

Mr Barclay: I do, in actual practice, for police cases it will not, because the position at the moment is that we provide advice, and the police retain the responsibility to charge. The advice that we give in police complaint cases, as in most other cases, will invariably be accepted by the police, who will then take that advice on board and charge.

Under the new legislation, we will have that responsibility, and therefore it is theoretically removed from the police, that actual power to say, "No, we are not going to accept your advice", so in practical terms, it stays the same.

Miss Weekes: Moving on to the standard of the investigations that you get, I think you commented by saying, in general terms, it is good.

Mr Barclay: Yes.

Miss Weekes: Is there anything about your relationship with the Metropolitan Police, when they come to you for advice, that you think could be improved?

Mr Barclay: I think sometimes, certainly in relation to cases of assault, or allegations of assault, which are by far and away the greatest number that we get, it is always helpful to get a statement from the doctor, rather than providing us with what is called in London a book 83 entry, which sometimes is deciphered, sometimes not.

Where the issue is an injury or an assault, it is useful if further information can be sought from medical experts, medical force examiners, that would help a great deal. There are issues about legibility of incident report books compiled by officers that we will need to see, and getting that in a format that is readily readable.

Also, in terms of the interviews, we invariably get transcribed interviews, and if it is a no comment interview, it perhaps is not necessary to do that, so there are ways in which more focus could be brought to bear on some of the more important issues, and less attention paid to things that are not actually so important.

But there are no fundamental consistent issues about the quality of files, just aspects of them, which I give you some examples of.

Miss Weekes: Yes. We have heard some evidence that not all officers, perhaps for good reason, maybe sometimes not – they do not make themselves available for interviews. So when you receive a set of papers for advice, there is no interview from the person against whom the complaint is made. He is entitled not to subject himself for interview.

Would it help generally if you did have the officer's explanation, what his account is, at that stage?

Mr Barclay: It helps because it ties him down or her down to an account which you can scrutinise, and it is possible that you might have a case where you have not even got an incident report book account from the officer, and if there is no interview either, you do not know what the issue in the case is going to be.

That does not mean you cannot deal with the case, but it does mean that you cannot, in advance, scrutinise to see what the issue in the case is going to be, so it makes it much more difficult if you have not got an interview.

In most cases, the officers will produce their incident report book and say, "That is my account and I stand by it", and the interview will consist of questions about what is in the report book.

Sometimes officers will give a slightly different account, and sometimes, obviously, no comment, or they may even provide an account which they have never given before.

So the answer is yes, it helps a lot to have an interview account, but if there is not going to be one, then, you know, we have to analyse what we have got.

Miss Weekes: I mean, there are times where, if an officer gives an account, it can actually help to a decision in his favour, not to prosecute?

Mr Barclay: Absolutely, and that is particularly so in cases where one is enquiring into the state of mind of an officer, as to whether he acted in self-defence, which is a very common issue.

Miss Weekes: Fast track cases, which you will be aware of, because the statute – certainly the statute in 2004 will allow for that. It is a matter for the Met how they use it and how often they use it.

How does fast track possibly touch upon your role?

Mr Barclay: We have given general advice to underline the issue that it should not be used except in exceptional circumstances where there is an extant criminal investigation going on, and what we have asked is that if there is going to be a proposal put forward to fast track an officer, in a case where we are involved or likely to be, then we have asked for that to be made known to us, so that we can provide our advice about what effect it might have if a decision to prosecute were made.

I have to say, I do not think I have come across such a case personally, although I know other colleagues who have, but the procedure will be that they will let us know.

The difficulty that it may give rise to is, of course, that it may be seen as prejudicing the outcome of the criminal investigation if an officer is not able to produce character evidence at a trial, but is really in a position of saying, "Well, I have been dismissed from the Force", and that can, in many cases, cause a lot of difficulties to securing a fair trial.

Miss Weekes: I think it is implicit in what you are saying, but one of the obvious difficulties will be where an officer is almost instantly dismissed, upon evidence that the Metropolitan Police considered to be overwhelming, but on an extended investigation by yourself, additional evidence is found which may alter the basis of the decision to dismiss, and that is a possible risk.

Mr Barclay: Perfectly possible, yes.

Miss Weekes: Just finally, is there any particular aspect of your relationship with the Metropolitan Police on these cases that you have very kindly outlined to us that you will want us to bear in mind when we consider our recommendations?

Mr Barclay: I think that there is a need to – and I do not know whether this would fall within your remit, it is certainly something we would wish to do with the police in any event, is to look again at the minimum file contents of the cases that are sent to us. So that we have no more than we need, and that we try and improve the efficiency with which they can operate by looking very closely at the type of documents that we must have and those we do not need to have; and those that we do not need to have in the form that we now have them.

It may well be that is a matter that does not fall strictly within your remit; but it is something we will do with the police, and we have done with our service level agreement.

Miss Weekes: Well, it is certainly very helpful to bear that in mind. Thank you.

Sir William Morris: Thank you very much indeed. Can I pass you across to my colleague, Sir Anthony Burden?

Questions by Sir Anthony Burden

Sir Anthony Burden: Just one area, Mr Barclay, if I may enlarge upon it; that is around delay.

Mr Barclay: Yes.

Sir Anthony Burden: We have heard several examples, and I appreciate that not all of these will be pending criminal decisions, but of officers suspended for seven years, which is just absolutely unacceptable.

What part do you as a service play in trying to keep delays to a minimum, if any?

Mr Barclay: Well, we have a general target of trying to return advice cases submitted by the police within 14 days of receipt, but in the service level agreement, the target was 14 – well, the target was five working days in clear cases where there is clearly insufficient evidence, and 28 days in cases that require a further review.

Now I do not pretend that we meet that target, but it is one that our local managers are generally aware of the need to get the cases dealt with as soon as possible. So we will try and deal with them in that way.

Sir Anthony Burden: So using those guidelines, although you very honestly say you do not always hit those guidelines, but you are working around them, in time terms?

Mr Barclay: They are there. And what actually happens is when the cases come from the professional standards directorates, wherever it is in London, they will come to the relevant unit of CPS London which handles those cases, and they will be dealt with by the unit head. So there is a measure of control, so that what needs to be done is known, and they are kept a handle on in that way. As I say, we are not hitting those deadlines as we should.

Sir Anthony Burden: No, and please, this has not been suggested to us, but if it is suggested to us that files are languishing on the desks of the CPS for long periods of time, that is not true?

Mr Barclay: I cannot answer that one way or another. I would certainly say that in some units, the pressure of caseload does mean that we are not hitting the targets or anywhere near them in some cases, but it depends what you mean by languishing for a long period of time. Certainly I would say that not all of them are done within that period of time, and there will be numbers of them that should have been dealt with some time before.

Sir Anthony Burden: But broadening this to the normal criminal case environment, where police officers are not involved, seven or eight years to bring a case to conclusion would not be anywhere near acceptable.

Mr Barclay: No, the delays I am talking about are nothing of that order at all, we are talking about months.

Sir Anthony Burden: Yes, rather than years.

Mr Barclay: Yes.

Sir Anthony Burden: Thank you very much indeed.

Sir William Morris: Thank you very much.

Questions by Sir William Morris

Sir William Morris: Mr Barclay, before I move to my closing words, can I share an experience with you, and perhaps ask a question at the end of it? As part of this Inquiry, one or two of my colleagues and myself visited the Lambeth Borough Command, the Brixton police station. As we were walking around the building, I saw a CPS sign on one of the doors, and I thought, "What a good idea, in terms of a little bit of joined up arrangement regarding the prosecution service", and then I started to think about it a little bit more, and reflected; I asked myself how widespread a practice that is in terms of co-operation. My next question is: in the light of that perceived co-operation, how does the CPS maintain public confidence regarding its own independence?

Mr Barclay: The first point to make is that independence truly is a state of mind rather than anything else.

Sir William Morris: Perception is greater than reality.

Mr Barclay: The perception is also extremely important, I entirely accept that. In relation to the handling of police complaint cases, that is taken on board, and we would not propose, when we have this unit, to be having a procedure involving prosecutors at police stations dealing with these cases, they will be dealt with by a centralised unit which will not be based at a police station, in order to preserve that transparency in those cases.

They are particularly sensitive cases because, of course, they do involve police officers and the perception that the lawyer is part of the police station, in those kinds of cases, can be particularly unfortunate, and it is the appearance that matters.

In more general terms, the advice that we provide is robust and it is dealt with by lawyers who will be coming and going from the police stations; they will not be there all the time. And we believe that those arrangements will provide a better quality service, to the extent that the number of cases that we need to stop because evidence is not there which should have been there will be greatly reduced. That has been the experience of the pilot sites, of duty prosecutors in stations, that the quality of the cases improves, and that those cases that start will finish in the way that they should.

Sir William Morris: Do I gather from your response that this was a pilot which will be evaluated and probably rolled out elsewhere?

Mr Barclay: It is the intention of the CPS nationally that there will be duty prosecutors in all the major police stations throughout England and Wales. That is a scheme which is necessary in order to support the new legislation which requires us to take decisions on charging. The only way that you can do that is to be there at the station looking at the evidence and taking the decision before the custody PACE clock stops; the defendant needs to be charged or released. To try and achieve that kind of responsibility remotely from a police station is pretty difficult, because there would be a question of a telephone.

So, that being the position, in London we have what we call a shadow scheme, which involves a greater number of police stations, and you visited one, where there is a duty prosecutor there. We call it the shadow scheme, because it is not until July, the end of July, that CPS London actually starts the statutory scheme, which will involve duty prosecutors at all the major police stations in London.

Sir William Morris: Does the Law Society have a view on that?

Mr Barclay: I do not know, I am not a solicitor. I have not been made aware of any view that they have, but certainly it has been generally well received, I believe also by the Metropolitan Police, and certainly by other organisations within the system who consider as we do that it is a method of improving the quality right at the outset of cases that are brought against defendants.

Sir William Morris: Thank you very much.

Just moving to my closing words, can I first of all thank you very much indeed for coming along and for the help that you have given to us. We have actually finished the questions, but in my opening comments earlier, I said that I would offer you an opportunity to make a brief closing comment, should you so wish. If you do wish, then now is the hour.

Mr Barclay: No, thank you for the opportunity, but I hope I have covered everything that I need to.

Sir William Morris: Okay. Well, thank you again, but can I just formally say for our transcript that as with all our witnesses, it may be that once we have heard others and other witnesses, we will want to ask people back for a few more questions, either by writing to them or inviting them back to a further session of hearings.

If we do decide to do so, we will obviously do it in a way which causes the least possible inconvenience to yourself, or indeed all our witnesses.

For the moment, nevertheless, all that I need to do is to thank you again, on behalf of my colleagues, for your written submissions and your oral evidence, and indeed for the contribution that you are making to our Inquiry. Thank you.

Mr Barclay: Thank you very much.

Sir William Morris: We will adjourn until 2.30.

1.00 pm
(The short adjournment)

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	Archive note Important note: This is an archive of the website that was formerly at www.morrisinquiry.gov.uk. It is being hosted on the MPA website for archival purposes only and may contain out-of-date information. Page summary This resource is from the Transcripts section. This section contains a transcript of the public session with Mr R Barclay, Director of Serious Case Work at the Crown Prosecution Service, on 31 March 2004. Sections available here: Transcript of public session: Mr R Barclay of the Crown Prosecution Service Questions by Miss Weekes Questions by Sir Anthony Burden Questions by Sir William Morris Alternative versions This transcript is also available with original line and page numbering. Content Transcript of public session: Mr R Barclay of the Crown Prosecution Service Wednesday, 31 March 2004 11.45 am Sir William Morris: Good morning, Mr Barclay, thank you very much indeed for coming. Apologies for keeping you waiting. Mr Barclay: Not at all. Sir William Morris: Can I say again thanks for accepting our invitation to attend the Inquiry, and for giving evidence. We actually have your written submission, and we are very grateful for it. I do appreciate that for some of our witnesses, any process of this nature may seem to be somewhat daunting, so I thought it would be helpful if I set out very briefly how we propose to conduct the hearing, but first, let me introduce myself and the other members of the panel. I am Sir Bill Morris, recently retired General Secretary of the Transport and General Workers Union. As you can see, I have two other members of the panel: first is Sir Anthony Burden, who recently retired as Chief Constable of the South Wales Constabulary, after a very long and distinguished career in the police service. Next to me is Miss Anesta Weekes, who is an eminent barrister and sits as a recorder and part-time chairperson of employment tribunals. She was also counsel to the Lawrence Inquiry. Mr Barclay, as you know, we have been asked by the Metropolitan Police Authority to conduct an independent inquiry into professional standards and employment matters in the Metropolitan Police Service. Our focus is in fact the MPS as an organisation, and not the individuals who make up the organisation. The inquiry that we are conducting is inquisitorial; it is not by nature or character adversarial. We are very keen to enquire into the issues raised by our terms of reference so that we can make appropriate recommendations for further good practice, rather than concentrating on criticisms of the MPS or the organisation. To help us in our task, we are keen to hear from all our witnesses not just what might be wrong with the MPS but what is right with it, but most importantly, we are looking for suggestions as to how things which are deemed to be wrong can in fact be put right. For the record, let me say that a transcript is being taken, so that we have a proper record of the evidence that has been provided to us, and this will be posted on our website later today. At the end of these introductory comments from me, Miss Weekes will lead on the questions to you, followed by any supplementary points that I may have or indeed Sir Anthony may have. At the conclusion of our questions, I will, as we do with every witness, offer you the opportunity for a brief closing comment. In your written submission, which will be posted on our website, you have given us some important information. You have, for example, indicated to us, by way of introduction, the statutory role of the Crown Prosecution Service, the CPS; investigating allegations of police conduct is another area on which you have enlightened us. You have given us a description of the type of quality of cases referred to the CPS by the police service itself, and there are comments about the CPS decision-making process that we find extremely interesting. We would like to ask you some questions about that material. Before we commence the questioning by Miss Weekes, for the benefit of our transcript note, I wonder if you would mind formally introducing yourself to the Inquiry. Mr Barclay: I am Rene Barclay, the Director of Serious Case Work at the Crown Prosecution Service in London. Sir William Morris: Thank you very much indeed. As I indicated, Miss Weekes will in fact be leading the questions, and I pass you straight over to her questioning. Questions by Miss Weekes Miss Weekes: Good morning, Mr Barclay. Can I deal with perhaps three areas where the Crown Prosecution Service will play a role in relation to cases referred to them by the Metropolitan Police? All three of those points are very helpfully dealt with in your submission. First of all, it is your role, what it is the Crown Prosecution Service does when they receive a request to look at a set of papers; secondly, the issue in relation to the investigation of that case, and procedural delay. Mr Barclay: Yes. Miss Weekes: So first of all, can I deal with, as it stands at the moment, the procedure when something is delivered to you, it may well be actually an oral request, or it could be a set of papers, from the Metropolitan Police, in relation to a police officer who they think will or may be prosecuted. There is a service level agreement in existence which will soon change, is that right? Mr Barclay: There is. I did not originally copy it to you, because it is in many ways out of date, because it predates a new structure. Given that caveat, it broadly represents and reflects the position that we aim to ensure that cases are looked at by prosecutors who have no connection with the officer under suspicion, and we achieve that through geographical location and allocation. When a case is received, it will normally be received by one of the professional standards directorates who are responsible for investigating the case, and that will be accompanied by a report, together with the statements and exhibits which have been gathered. Our job then is to review the case and to decide whether there is sufficient evidence in accordance with our code which requires us in every case, not simply in a case involving a police officer, but in every case, requires us to carry out a two stage test. First of all, we have to be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. If there is not, then that is the end of the matter. If there is sufficient evidence, we then have to go on to decide whether the public interest requires prosecution, and if the answer to both questions is yes, then we will – currently, we advise the police, provide advice to the investigating officer to prosecute. The legislation coming through this year will actually provide us with a statutory responsibility for charging, but effectively, for police cases, it will remain the same, because the advice is invariably accepted. Miss Weekes: Right. Can I just interject there by saying when the changes come about to the service level agreement, one of the main things I suspect that you will want to ensure are kept is the independence of the Crown Prosecution Service personnel, so the person who gives the advice will remain independent by area or knowledge of the policeman at all, because that obviously gives public confidence. Mr Barclay: Absolutely. Miss Weekes: Can I ask you just a little bit about your relationship with the Metropolitan Police Service and the getting of the advice? From an officer's point of view, they are concerned about getting the advice quickly, and that the advice is seen to be fair advice given on the basis of what there is on the table. Often it does not filter down to the officer – this is obviously not your problem, but it does not filter down to the officer what is going on between you and the Metropolitan Police at that stage. It is difficult for you, but I think it is helpful that you are joining the debate; is there anything that you might want to comment on about that first stage, as it were? Mr Barclay: There are cases in which investigating officers have indicated that the suspect officer is particularly concerned about the length of time; I have known that happen. All that we can try and do is do it as quickly as possible; because of the way the legislation is framed, it means that the steps have to be undertaken, and there may well be cases where although there is evidence on the papers, we have to advise the police to pursue all reasonable lines of enquiry, which might mean – take, for example, a case involving the use of a truncheon. It may well be that in such a case, it would be necessary to get some form of expert evidence about it. There may be other forensic evidence that one might need to get. All that takes time, and I know that investigating officers from the directorates have a heavy caseload, and all that adds to the time. I do not know whether this happens or not, but I can see no reason why the general nature of the investigation cannot be provided in terms of an update to the officers under suspicion, or indeed to those representing them, as they invariably will be, at the interview which will have taken place. That perhaps is probably the best method of keeping the suspects' representatives informed, so they can in turn keep them informed. Miss Weekes: Yes. You serve a general nature, because it is true to say that the majority of your advice and what you do – "Please go along and get an expert", and the expert is got – would be disclosable. Mr Barclay: Certainly, yes. Miss Weekes: Public interest immunity matters would obviously not be disclosed. Mr Barclay: No. As a general rule, until a decision is taken finally on whether to prosecute a case, we would not disclose any material to anyone. When a final decision is taken, if it is to prosecute, you are absolutely right, everything is disclosed in accordance with the 1996 Act. If a decision is taken not to prosecute, it will occasionally happen that there may be requests made for material, and that will either be dealt with by the police themselves, or if it is a request to us, then we will deal with it on a case by case basis, depending upon why it is sought. Miss Weekes: One of the suggestions for change to improve on delay is a designated unit within the CPS areas that will deal with referral of cases from the CPS. Will that genuinely speed up matters, do you think? Mr Barclay: Well, I am fairly confident that it will. Reviewing police cases is slightly different from reviewing very many other cases, because a lot will turn on whether there was reasonable suspicion, and that is often a very difficult issue to grapple with. One is looking in virtually all cases at powers that the police have, intrusive powers which they rightly and properly have. In many cases, the issue is: well, has that power been properly exercised? Or in our case: can we prove to the criminal standard that it has not been applied, or that it has been misapplied, excessive force when only reasonable force is permitted? So they do call for some judgment, careful judgment, which will often turn on a power of arrest or an intrusive power. By centralising the handling of police cases within London, and I can only speak for London, we hope that – we are confident, in fact, that we will be able to spread the expertise amongst a group of lawyers who we will rotate over a period of time, so that people will come out and go into the unit, and the management of the cases can be more focused; and of course information about any case in London can be obtained fairly quickly through one unit. But we have to ensure that however the unit is staffed, it preserves the independent issue which, as you have already pointed out, is quite rightly absolutely crucial to public confidence, and also so that we are in a position to say and confirm that this case has received a proper and independent review. This is particularly important because many complainants will write in to us to disagree with the decision, if it is a decision not to prosecute, because under the current arrangements, we have to let them know in writing, we write to them to tell them what is happening, and they can often respond and want to know why – will want to know more, and obviously, we need to be very clear, and we will respond. But we need to be absolutely positive and clear that there has been a transparent and independent review of the case, which there will be. So the key to this unit is to ensure that however it is arranged, it is arranged in a way that preserves that independence. Miss Weekes: You have just described a very important process whereby you write to the complainant to say what has gone on. What would be the criticism or what would be wrong with – and there might be, which is why I am asking you – an ability for the Crown Prosecution Service to write to the officer direct, after a particular period of time, to say, "It has now been four months, this is where we are at, this is why I have not yet made a decision"? Mr Barclay: I think I would need to be persuaded that there would be a reason to do it in a case involving a police officer, and a need to do it in every other case; in other words, I do not see that a police officer, albeit that there are obviously serious consequences to an officer in many ways – but I think there are other suspects who also would be entitled to say, "Well hang on a minute, why is an officer receiving this particular treatment in terms of management update?" So it would partly be a resource issue for me. But also, if it were done for officers, it would have to be done for everyone, and that would be fairly intensive. I mean, the current arrangement is that often, an investigating officer might call and say, "What is happening?" It may well be that we are in the middle of reviewing it, it may well be we need some more information. And we will keep the officer informed, where we are able to give them a fairly precise idea of how long it is going to take. If the temperature gets high at the police end, and they will phone up and say, "Well, how long is it going to take, because the solicitors or the officer concerned is worried about it?", we will try and deal with it that way, and give a guesstimate as best we can of when we are going to arrive at a decision. Miss Weekes: So really, the onus is on the investigating officer, somebody within the Met to keep the officer complained about up to date, really? Mr Barclay: Yes. Miss Weekes: Can I move on to the position that will change slightly with the Police (Reform) Act? Mr Barclay: I am sorry to interrupt, I noticed this morning that I have given the wrong year, I said it was 2003, and it is 2002. I typed it, so it is my fault. Miss Weekes: That is all right. These typing errors do occur. I certainly took it as a typing error. Will there be a fundamental change at all? I have looked at the statute, and it does not appear to me that it would be, do you happen to agree with that? Mr Barclay: I do, in actual practice, for police cases it will not, because the position at the moment is that we provide advice, and the police retain the responsibility to charge. The advice that we give in police complaint cases, as in most other cases, will invariably be accepted by the police, who will then take that advice on board and charge. Under the new legislation, we will have that responsibility, and therefore it is theoretically removed from the police, that actual power to say, "No, we are not going to accept your advice", so in practical terms, it stays the same. Miss Weekes: Moving on to the standard of the investigations that you get, I think you commented by saying, in general terms, it is good. Mr Barclay: Yes. Miss Weekes: Is there anything about your relationship with the Metropolitan Police, when they come to you for advice, that you think could be improved? Mr Barclay: I think sometimes, certainly in relation to cases of assault, or allegations of assault, which are by far and away the greatest number that we get, it is always helpful to get a statement from the doctor, rather than providing us with what is called in London a book 83 entry, which sometimes is deciphered, sometimes not. Where the issue is an injury or an assault, it is useful if further information can be sought from medical experts, medical force examiners, that would help a great deal. There are issues about legibility of incident report books compiled by officers that we will need to see, and getting that in a format that is readily readable. Also, in terms of the interviews, we invariably get transcribed interviews, and if it is a no comment interview, it perhaps is not necessary to do that, so there are ways in which more focus could be brought to bear on some of the more important issues, and less attention paid to things that are not actually so important. But there are no fundamental consistent issues about the quality of files, just aspects of them, which I give you some examples of. Miss Weekes: Yes. We have heard some evidence that not all officers, perhaps for good reason, maybe sometimes not – they do not make themselves available for interviews. So when you receive a set of papers for advice, there is no interview from the person against whom the complaint is made. He is entitled not to subject himself for interview. Would it help generally if you did have the officer's explanation, what his account is, at that stage? Mr Barclay: It helps because it ties him down or her down to an account which you can scrutinise, and it is possible that you might have a case where you have not even got an incident report book account from the officer, and if there is no interview either, you do not know what the issue in the case is going to be. That does not mean you cannot deal with the case, but it does mean that you cannot, in advance, scrutinise to see what the issue in the case is going to be, so it makes it much more difficult if you have not got an interview. In most cases, the officers will produce their incident report book and say, "That is my account and I stand by it", and the interview will consist of questions about what is in the report book. Sometimes officers will give a slightly different account, and sometimes, obviously, no comment, or they may even provide an account which they have never given before. So the answer is yes, it helps a lot to have an interview account, but if there is not going to be one, then, you know, we have to analyse what we have got. Miss Weekes: I mean, there are times where, if an officer gives an account, it can actually help to a decision in his favour, not to prosecute? Mr Barclay: Absolutely, and that is particularly so in cases where one is enquiring into the state of mind of an officer, as to whether he acted in self-defence, which is a very common issue. Miss Weekes: Fast track cases, which you will be aware of, because the statute – certainly the statute in 2004 will allow for that. It is a matter for the Met how they use it and how often they use it. How does fast track possibly touch upon your role? Mr Barclay: We have given general advice to underline the issue that it should not be used except in exceptional circumstances where there is an extant criminal investigation going on, and what we have asked is that if there is going to be a proposal put forward to fast track an officer, in a case where we are involved or likely to be, then we have asked for that to be made known to us, so that we can provide our advice about what effect it might have if a decision to prosecute were made. I have to say, I do not think I have come across such a case personally, although I know other colleagues who have, but the procedure will be that they will let us know. The difficulty that it may give rise to is, of course, that it may be seen as prejudicing the outcome of the criminal investigation if an officer is not able to produce character evidence at a trial, but is really in a position of saying, "Well, I have been dismissed from the Force", and that can, in many cases, cause a lot of difficulties to securing a fair trial. Miss Weekes: I think it is implicit in what you are saying, but one of the obvious difficulties will be where an officer is almost instantly dismissed, upon evidence that the Metropolitan Police considered to be overwhelming, but on an extended investigation by yourself, additional evidence is found which may alter the basis of the decision to dismiss, and that is a possible risk. Mr Barclay: Perfectly possible, yes. Miss Weekes: Just finally, is there any particular aspect of your relationship with the Metropolitan Police on these cases that you have very kindly outlined to us that you will want us to bear in mind when we consider our recommendations? Mr Barclay: I think that there is a need to – and I do not know whether this would fall within your remit, it is certainly something we would wish to do with the police in any event, is to look again at the minimum file contents of the cases that are sent to us. So that we have no more than we need, and that we try and improve the efficiency with which they can operate by looking very closely at the type of documents that we must have and those we do not need to have; and those that we do not need to have in the form that we now have them. It may well be that is a matter that does not fall strictly within your remit; but it is something we will do with the police, and we have done with our service level agreement. Miss Weekes: Well, it is certainly very helpful to bear that in mind. Thank you. Sir William Morris: Thank you very much indeed. Can I pass you across to my colleague, Sir Anthony Burden? Questions by Sir Anthony Burden Sir Anthony Burden: Just one area, Mr Barclay, if I may enlarge upon it; that is around delay. Mr Barclay: Yes. Sir Anthony Burden: We have heard several examples, and I appreciate that not all of these will be pending criminal decisions, but of officers suspended for seven years, which is just absolutely unacceptable. What part do you as a service play in trying to keep delays to a minimum, if any? Mr Barclay: Well, we have a general target of trying to return advice cases submitted by the police within 14 days of receipt, but in the service level agreement, the target was 14 – well, the target was five working days in clear cases where there is clearly insufficient evidence, and 28 days in cases that require a further review. Now I do not pretend that we meet that target, but it is one that our local managers are generally aware of the need to get the cases dealt with as soon as possible. So we will try and deal with them in that way. Sir Anthony Burden: So using those guidelines, although you very honestly say you do not always hit those guidelines, but you are working around them, in time terms? Mr Barclay: They are there. And what actually happens is when the cases come from the professional standards directorates, wherever it is in London, they will come to the relevant unit of CPS London which handles those cases, and they will be dealt with by the unit head. So there is a measure of control, so that what needs to be done is known, and they are kept a handle on in that way. As I say, we are not hitting those deadlines as we should. Sir Anthony Burden: No, and please, this has not been suggested to us, but if it is suggested to us that files are languishing on the desks of the CPS for long periods of time, that is not true? Mr Barclay: I cannot answer that one way or another. I would certainly say that in some units, the pressure of caseload does mean that we are not hitting the targets or anywhere near them in some cases, but it depends what you mean by languishing for a long period of time. Certainly I would say that not all of them are done within that period of time, and there will be numbers of them that should have been dealt with some time before. Sir Anthony Burden: But broadening this to the normal criminal case environment, where police officers are not involved, seven or eight years to bring a case to conclusion would not be anywhere near acceptable. Mr Barclay: No, the delays I am talking about are nothing of that order at all, we are talking about months. Sir Anthony Burden: Yes, rather than years. Mr Barclay: Yes. Sir Anthony Burden: Thank you very much indeed. Sir William Morris: Thank you very much. Questions by Sir William Morris Sir William Morris: Mr Barclay, before I move to my closing words, can I share an experience with you, and perhaps ask a question at the end of it? As part of this Inquiry, one or two of my colleagues and myself visited the Lambeth Borough Command, the Brixton police station. As we were walking around the building, I saw a CPS sign on one of the doors, and I thought, "What a good idea, in terms of a little bit of joined up arrangement regarding the prosecution service", and then I started to think about it a little bit more, and reflected; I asked myself how widespread a practice that is in terms of co-operation. My next question is: in the light of that perceived co-operation, how does the CPS maintain public confidence regarding its own independence? Mr Barclay: The first point to make is that independence truly is a state of mind rather than anything else. Sir William Morris: Perception is greater than reality. Mr Barclay: The perception is also extremely important, I entirely accept that. In relation to the handling of police complaint cases, that is taken on board, and we would not propose, when we have this unit, to be having a procedure involving prosecutors at police stations dealing with these cases, they will be dealt with by a centralised unit which will not be based at a police station, in order to preserve that transparency in those cases. They are particularly sensitive cases because, of course, they do involve police officers and the perception that the lawyer is part of the police station, in those kinds of cases, can be particularly unfortunate, and it is the appearance that matters. In more general terms, the advice that we provide is robust and it is dealt with by lawyers who will be coming and going from the police stations; they will not be there all the time. And we believe that those arrangements will provide a better quality service, to the extent that the number of cases that we need to stop because evidence is not there which should have been there will be greatly reduced. That has been the experience of the pilot sites, of duty prosecutors in stations, that the quality of the cases improves, and that those cases that start will finish in the way that they should. Sir William Morris: Do I gather from your response that this was a pilot which will be evaluated and probably rolled out elsewhere? Mr Barclay: It is the intention of the CPS nationally that there will be duty prosecutors in all the major police stations throughout England and Wales. That is a scheme which is necessary in order to support the new legislation which requires us to take decisions on charging. The only way that you can do that is to be there at the station looking at the evidence and taking the decision before the custody PACE clock stops; the defendant needs to be charged or released. To try and achieve that kind of responsibility remotely from a police station is pretty difficult, because there would be a question of a telephone. So, that being the position, in London we have what we call a shadow scheme, which involves a greater number of police stations, and you visited one, where there is a duty prosecutor there. We call it the shadow scheme, because it is not until July, the end of July, that CPS London actually starts the statutory scheme, which will involve duty prosecutors at all the major police stations in London. Sir William Morris: Does the Law Society have a view on that? Mr Barclay: I do not know, I am not a solicitor. I have not been made aware of any view that they have, but certainly it has been generally well received, I believe also by the Metropolitan Police, and certainly by other organisations within the system who consider as we do that it is a method of improving the quality right at the outset of cases that are brought against defendants. Sir William Morris: Thank you very much. Just moving to my closing words, can I first of all thank you very much indeed for coming along and for the help that you have given to us. We have actually finished the questions, but in my opening comments earlier, I said that I would offer you an opportunity to make a brief closing comment, should you so wish. If you do wish, then now is the hour. Mr Barclay: No, thank you for the opportunity, but I hope I have covered everything that I need to. Sir William Morris: Okay. Well, thank you again, but can I just formally say for our transcript that as with all our witnesses, it may be that once we have heard others and other witnesses, we will want to ask people back for a few more questions, either by writing to them or inviting them back to a further session of hearings. If we do decide to do so, we will obviously do it in a way which causes the least possible inconvenience to yourself, or indeed all our witnesses. For the moment, nevertheless, all that I need to do is to thank you again, on behalf of my colleagues, for your written submissions and your oral evidence, and indeed for the contribution that you are making to our Inquiry. Thank you. Mr Barclay: Thank you very much. Sir William Morris: We will adjourn until 2.30. 1.00 pm (The short adjournment) Internal links On this website: Evidence: Mr R Barclay Evidence provided by and documents referred to by Mr R Barclay in his appearance at the Inquiry.
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Transcripts > Crown Prosecution Service (31 Mar 04)
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