Tuesday, 26 February 2013

Cost over quality - the 'secret' is out

This week's revelation that the CPS seemingly favour 'cost over quality' - by in instructing in-house advocates for the most profitable cases - has been greeted with strange surprise by figures including the DPP, Keir Starmer. But it should be questioned whether such incredulity is genuine; it should be no shock that that the underlying mantra of the criminal justice system is now 'cost over quality'.

There are many clues and have been for years. The eternal drive for more 'efficiency' and 'speed' in criminal proceedings is not necessarily born of a desire to just cut out bona fide time-wasting. The very term seems to include actions that both defence and prosecution (and perhaps juries and victims) would consider necessary, including instructing experts and robust defence cross-examinations. The latter seem to be increasingly conducted under the watchful eye of magistrates and judges with equal concern for the clock. Sometimes this is good and sometimes this leads to missed evidence or truncated testimony, subsequent appeals and more money spent. Additionally, wasted costs orders are effectively used to punish 'time wasting' and deters going too far for clients.

The Criminal Procedure Rules - now the touchstone of the criminal process - are founded on principles all geared towards quicker, shorter, cheaper. The 'Stop Delaying Justice' policy is similarly oriented - often urging the defence to declare their hand before even being fully aware of the case against them. Failure to do so could mean negative inferences or WCOs.

The CPS have, for years, been under the kosh financially. The regularity of unprepared prosecutors or missing files on the day of hearings is frequently bemoaned by both judges and defence lawyerly. The email that has whipped up a storm this week betrays the key driving force behind CPS budgeting - maximise profit in order to keep the car running. How many other senior managers have sent out similar emails is unknown; but it is highly unlikely to be rare.

The Coalition Government and their predecessors are most guilty of placing cost first. The continuous slashing of legal aid disincentivises quality work and is easy to target. Fixed fees for police stations and graduated fee schemes for advocates are good examples. The drive for tender-based competition and schemes such as OCOF are causing near riotous insubordination amongst the legal profession. The near miss of means tested legal aid in the police station under LASPO also highlights where the government's priorities lie.

Other examples include Chris Grayling's recent attack on QCs (the necessary quality of whom was lauded by Lord Judge); Theresa May's proposed transfer of thousands of cases away from trained advocates to the police for prosecution; the continuous drive to push defendants out of courts and onto video camera; phone based legal advice rather one-to-one representation. There are many more.

All are primarily justified by terms like 'efficiency', 'value for money', 'slashed bureaucracy', 'speedier justice', and so forth. Last to pass the lips are 'quality', 'high standards', 'rigour' or 'effectiveness'. Justice has become a price tag among price tags behind the Treasury's doors. And we shouldn't be suprised - the evidence surely proves it beyond reasonable doubt.

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