Crown Prosecution Service – written evidence (CIC0036)

 

House of Lords Constitution Committee

Inquiry into the Constitutional Implications of COVID-19

 

 

 

Introduction

  1. The Crown Prosecution Service (CPS) welcomes the opportunity to contribute to the Committee’s review into the constitutional implications of Covid-19 on the operation of the courts.

 

  1. The CPS is the principal prosecuting authority in England and Wales, completing around 450,000 prosecutions per annum. As such, the CPS prosecutes the majority of criminal cases in England and Wales. We are therefore well placed to comment from the perspective of being a party directly concerned in the effective and efficient administration of justice.

 

  1. The Covid-19 outbreak presented an unprecedented challenge for the criminal justice system. The CPS continues to work with partner agencies to ensure that all cases are prosecuted fairly and expeditiously. As social restrictions were put in place as a consequence of the virus, all on-going trials and nearly all in-person hearings ceased for a period. This created a significant backlog of cases in both the magistrates’ courts and Crown Court jurisdictions. Huge efforts are now being made to recover court capacity and tackle the backlogs. Notwithstanding this, the requirements of social distancing mean that only a limited proportion of the court estate is available for use and this is likely to be the situation for some time yet. In response, from early on in the outbreak phase, the criminal justice system developed digitally enabled remote hearing capability, at pace, so that court-related activity could continue to the greatest degree possible. As a consequence, in the intervening period, there has been a significant rise in the number of virtual hearings.

 

  1. As the criminal justice system and the country transitions from lockdown into the recovery phase, it is paramount that future considerations are made to enable the courts to not only operate safely, but also expeditiously, efficiently and fairly, in order to tackle the backlog.

 

  1. The overriding objective of convicting the guilty and acquitting the innocent must be at the centre of any conversation around the future working of the courts. This response will focus on questions on virtual proceedings and progress of cases. We do not propose to respond in relation to the composition of juries.

 

 

Virtual proceedings

 

1. How effective are virtual court and tribunal proceedings? What are the benefits, disadvantages and challenges of virtual proceedings?

 

  1. Increasing capacity, whilst maintaining the safety of all court attendees by reducing in-person attendance, will require innovative ways to utilise court estate during recovery. The courts will need to operate at a higher capacity than pre-Covid-19 levels to reduce the backlog of cases. Virtual hearings will be integral to this aspiration, working in a complementary fashion alongside physical attendance, which is essential in certain types of case or certain reasons for listing. 

 

  1. The CPS has fully digital casework processes. We have previously invested in a robust technology infrastructure, which has enabled our staff to work remotely and engage virtually in court proceedings during this challenging period. Prior to the pandemic, we had around 500 members of staff working from home on any given day. Overnight, we moved to over 5000 staff working effectively from home. The CPS’s independent inspectorate, Her Majesty’s Crown Prosecution Service Inspectorate, carried out a review of our immediate response to the pandemic, and found much to commend, including our foresight in upgrading our digital capability.[1]

 

  1. During the pandemic, virtual proceedings have proven to be an effective method to continue hearing criminal cases. They have allowed hearings to proceed without the need for the defendant, victims, witnesses, the prosecutor or defence representative to travel to and be physically present in court.

 

  1. The Ministry of Justice’s Cloud Video Platform (CVP), which first came into use on 2 April, enables the defendant, defence and prosecution advocates and the probation service to appear in a virtual courtroom, with the Judiciary/ Bench remaining in the courtroom. Whilst noting the scale and pace of the roll-out, there has been recognition from users (including police, prosecution, defence, probation, prisons and magistrates) that the use of video hearings has been a success. In general, we have received positive feedback from our front line staff on the quality of the equipment and the effectiveness of the system.

 

  1. There have been over 30,000 video hearings since the pandemic began. CPS prosecutors routinely appear by CVP in both the magistrates’ courts and Crown Court.

 

  1. With an uncertain and continually changing position regarding the status of the virus nationally and in different regions, it is vital that the CJS continues to use and develop virtual court hearings. Without this, there is an increased risk to national or regional resilience in the event of a second wave and any resulting significant CPS staff abstraction due to Covid-19. This is equally applicable to the staff other partner agencies, to ensure the continued effective operation of the criminal justice system.

 

Benefits

 

  1. Virtual hearings have clear benefits for the criminal justice system. They have enabled a wider, more agile deployment of advocates, and allow advocates who are shielding to continue to conduct hearings. They have also allowed advocates to appear in more than one court centre in a day. This has resulted in more effective case progression, as advocates have been able to retain cases throughout proceedings, from early hearings to trial.

 

  1. As we move to recovery, virtual hearings continue to reduce the need to travel, and increase court capacity for priority work whilst maintaining safety through reducing the requirement of physical attendance. This is vital to protect all participants, especially, as we know that the virus discriminates against certain sections of our communities, most of whom are represented within CPS staff, other criminal justice agencies, court users and, of course, the public who will be attending as victims, witnesses or observers. Remote hearings have the capability to reduce the footfall at court to minimum, which we believe is an important consideration now and for some time to come, at least until a widely available effective vaccine has been produced.

 

  1. Virtual hearings also have potential benefits for more efficient court listing, enabling courts to brigade cases in larger numbers, as opposed to listing at multiple sites. Courts will also be able to evenly distribute hearings, thus avoiding bulk listing in one court centre, where another operates at reduced capacity. Importantly, utilising virtual hearings in this way will enable HMCTS to use what Crown Court capacity it has for jury trials which is the most pressing requirement currently, and which require the physical attendance of most parties in court. We believe that this would be a more efficient and effective way to address the backlog and get cases on as soon as possible in the interests of justice, victims and defendants.

 

Challenges

 

  1. The scale and pace of the implementation of virtual hearings has resulted in variations of practice and utilisation, which has made managing deployment of some advocates difficult.

 

  1. Remote advocacy is new for many prosecutors. During the initial implementation, hearing times increased due to staff having to learn new processes and ways of working. There were also some technical issues concerning audio and visual quality, but none of these being insurmountable on their own. Any remote digital activity is, of course, always reliant on stable connectivity.

 

  1. Any new approach to ways of working will take time and effort to bed in. The CPS has worked hard to ensure prosecutors are properly trained and have access to adequate support in order to undertake remote hearings effectively. Unsurprisingly, we have found that greater proficiency comes with practice when using remote access processes. We believe that perseverance and greater familiarity with the system will overcome some of the initial challenges associated with the introduction of a new approach to ways of working that happened, of necessity, at great pace. Similar issues were encountered previously with other criminal justice system digital initiatives such as the Digital Case System (DCS) in the Crown Court, and Bench and Store in the magistrates’ court, systems the CJS would now not be without.

 

  1. Under the current virtual process, it has proven challenging to replicate the in-court engagement that takes place between advocates to discuss cases. Again, this is not insurmountable, and consideration is already being given to suitable scheduling and the allocation of time slots to enable lawyers to meet to discuss cases as they would otherwise in the precincts of the court, creating a “virtual robing room”, for example.

 

2. What is the impact of virtual proceedings on prosecutors? What support is available to them and what is required?

 

  1. The overall impact has been beneficial and the CPS has business processes and support structures in place to continue, improve, and broaden the scope of virtual proceedings where necessary and appropriate.

 

  1. Prior to the Covid-19 outbreak, CPS lawyers had rarely participated in audio and video hearings. They have had to adapt quickly to new ways of working. The CPS has made sure that prosecutors are prepared for these changes through the provision of national and local training sessions, guidance, and peer support. Additionally, we moved at pace to ensure that our prosecutors had all the required equipment for video hearings. We also increased network capacity to ensure that our infrastructure could support the increased video traffic.

 

  1. Our frontline staff have told us that the use of virtual hearings have been beneficial to their health and wellbeing during the pandemic, ensuring their safety and reducing the risk of transmission to others by enabling them to undertake advocacy work remotely. Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) found in its consideration of the CPS’s response to the crisis that support for staff had been considerable during the outbreak phase and noted that the CPS has a ‘caring and considerate’ culture.

 

3. What are the implications of virtual proceedings for access to justice, participation in and fairness of proceedings, transparency and media reporting, adversarial vs inquisitorial styles of proceeding?

 

  1. During the pandemic, virtual proceedings have enabled access to justice to be maximised. It has allowed prosecutors and other court users who would not have been able to attend court in person the opportunity to participate, rather than these cases being adjourned and delayed.

 

  1. Providing that there is a sensible and consistent approach to cases which are suitable for virtual proceedings, remote hearings can proceed fairly and can be effective.

 

  1. In certain cases or types of hearing, attendance in person by a prosecutor will generally be required. In trials and other complex hearings, it is important that a prosecutor is present, visible and available to liaise with victims, witnesses and other parties at the court. In these cases, both before and during the court hearing, a level of face-to-face interaction is required that the technology is not yet able to replicate.

 

  1. As a consequence, as we move through the recovery phase, the CPS would advocate for the continuation of a mixed-economy approach, with hearings that cannot take place virtually taking place in-person, in a socially distanced setting, and hearings that have worked well over CVP continuing to be carried out virtually, such as plea and trial preparation hearings (PTPH), applications, mentions, Not Guilty Anticipated Plea, Guilty Anticipated Plea and remand hearings. This will improve efficiency while helping to minimise the risk of spreading the virus.

 

4. What difference, if any, might virtual proceedings make to the outcomes of cases?

 

  1. The CPS closely monitors the performance of cases, but it is too early to ascertain the impact of the increased use of virtual hearings. Virtual hearings have been effective in progressing cases during the pandemic. They have been successfully utilised for interlocutory and pre-trial hearings, where cases are managed based on submissions, rather than the calling and testing of evidence.

 

5. What further research or data are required in order to understand the impact of virtual proceedings?

 

  1. The CPS is supportive of further research into this area so that virtual proceedings do not encroach on the fairness or effectiveness of the justice system. The CPS is participating in the Ministry of Justice led cross-agency end-to-end review of virtual hearings. This work is attempting to understand the impact of efficient running of the court and, importantly, the impact on user experience.

 

6. Are the IT systems in the courts fit for purpose to support virtual proceedings?

 

  1. The CPS is part of the Technology Enabled Justice Group, which is leading cross agency work to ensure the best use of video hearings for all agencies. All our staff have webcams enabled on their laptops and can join video hearings, using whichever technology the court chooses.

 

  1. The Ministry of Justice (MoJ) Cloud Video Platform (CVP) is the long-term solution for all video enabled hearings. This platform enables the defendant, defence and prosecution advocates and the probation service, to appear in a virtual courtroom hosted by Her Majesty’s Courts and Tribunals Service (HMCTS). At present, the judiciary remains in the courtroom, thereby meeting the open justice requirements.

 

  1. HMCTS has implemented CVP to all operational criminal courts, and where operated correctly, it is fit for purpose for virtual proceedings. Feedback has been provided that the system is effective when operating efficiently and there have been over 30,000 video hearings since the start of the pandemic.

 

  1. However, due to the pace of the national implementation, there have been some technical issues with audio and connectivity and the placement of screens in court. Many of these issues have been addressed and solved through stakeholder meetings. The CPS continues to engage with the development of CVP, so that its use can be further improved and fully embedded.

 

7. Are certain types of case more/less suitable for virtual proceedings? If so, which ones?

 

  1. For justice to be delivered there will always be a certain volume of hearings where attendance in person will be required. These include trials, some sentencing and other complex hearings, where there will be a public declaration of guilt or innocence, and where physical presence of participants is more suitable.

 

  1. During the pandemic, the justice system has made significant strides and has effectively utilised virtual hearings for a number of interlocutory pre-trial hearings. These include plea and trial preparation hearings (PTPH), pre-trial reviews, suitable sentencing, mentions, custody time limit (CTL) extension applications, Not Guilty Anticipated Plea, Guilty Anticipated Plea and remand hearings.

 

 

8. Should virtual court proceedings continue after the end of social distancing? If so, for what types of proceedings? If so, how might they be used to extend, rather than just maintain, access to justice?

 

  1. The unprecedented challenge that the pandemic presented the criminal justice system has produced changes that will benefit all agencies in the long term. Virtual proceedings are fundamental to increasing efficiency (throughput) and capacity. These processes, particularly in the pre-trial space, should continue to be embedded and considered part of our (modern) criminal justice system’s menu of usual business processes to transact work.

 

  1. Greater use of virtual hearings and virtual justice are key components of the HMCTS’s Crime (Court Reform) Programme. An unexpected consequence of the pandemic was the development of these components at pace. This should be continued, not paused or disregarded. Considerable public funding has been invested to bring about the rapid implementation of CVP in all courts in both the magistrates’ and Crown Court jurisdictions in England and Wales. This should not be regarded as a product that was purely introduced in response to the pandemic which will now lie largely dormant.

 

  1. However, there must be a balance and a level of national consistency in the use for virtual proceedings.  When it comes to the conduct of trials and the public perception of justice, the cornerstones of open justice and access to justice need to be maintained, and these hearings should be heard in open court.

 

  1. An appropriate balance between physical and remote attendance would increase both court capacity and the number of hearings. This will drive greater efficiency and enable improvements in timeliness. Our response to question 7 sets out the type of hearings that have been carried out effectively during the pandemic, and could continue to be carried out virtually in the future.

 

Progress of cases

 

15. What types of case are proceeding, both physically and virtually, during lockdown? What types of case are not making progress and what are the implications of that?

 

  1. During the pandemic the courts have not been able to operate at normal capacity and continue to operate on a reduced model.

 

  1. Following the decision from the Lord Chief Justice on 23 March that no new jury trials or physical hearings would take place in the Crown Court, unless it was safe for them to do so, the CPS produced guidance on how these arrangements would be managed and on prioritising work in both the magistrates’ courts and Crown Court.
  2. Initially the Crown Court supported the listing of only essential and urgent cases; this was predominately hearings relating to bail or CTL extensions, urgent custody cases, applications and some sentencing. Jury trials re-started in some Crown Courts from 18 May and the number of sites where trials can be listed is extending every week. As of the 10 August, 64 Crown Court centres can conduct jury trials.

 

  1. In the magistrates’ courts the following case types were initially listed: overnight custody cases, cases with custody time limits (CTLs) that need to be extended, breach of court bail and interim custody appearances. From late April, a wider range of case types were introduced in magistrates’ courts, including a small number of magistrates trials, and as of July they began listing all types of criminal cases, but at a much reduced capacity.

 

  1. The effect is particularly acute on cases involving larger numbers of defendants (multi-handers) where social distancing measures mean that courts do not have the space to hear these cases currently. These are often serious, complex and lengthy cases that may suffer from higher risk of victim attrition over prolonged periods of time before cases are heard. Severing larger trials into smaller more manageable entities may have to be considered albeit this is sub-optimal as it requires victims and witnesses to give the same evidence on more than one occasion.

 

  1. Reduced capacity also presents challenges relating to custody time limits where the prosecution has to seek numerous extensions of custody while proceedings await trial listings, often on the grounds of public safety. This is an issue on which the CPS continues to engage with the senior judiciary and courts.

 

16. What types of case should be prioritised during the pandemic?

 

  1. At the start of the pandemic, we issued joint interim charging guidance with the National Police Chiefs’ Council, acknowledging the challenges facing the criminal justice system, and setting out the cases that should be prioritised.[2] Our focus at this time was to ensure the most dangerous offenders were dealt with as a priority. Following evidence that some people were seeking to exploit the pandemic, we also put a focus on Covid-19 related offences such as coughing or spitting on emergency workers.

 

17. What effect has the pandemic had on the large backlog of criminal cases and what are the consequences of this? How should the backlog be addressed?

 

  1. The pandemic has had a significant impact on the backlog of criminal cases. At the end of February there were 102,000 live cases with the CPS. Due to lockdown and social distancing many courts were closed. As of 17 August there were 178,510 live cases in the CPS’s Case Management System (CMS). This is a 75% increase from our pre-Covid-19 baseline of 102,000 in February. Of this number we estimate that 120,000 are magistrates’ court cases and 59,000 Crown Court cases. A proportion of the cases in the Crown Court figure will currently be listed within the magistrates’ court. When considering the backlog and recovery it is important to identify cases that will progress to the Crown Court as they are among the most resource intensive cases.

 

  1. Whilst we recognise that listing is a judicial function, we believe that there is opportunity for a considerable gain in efficiency by utilising available options. The backlog should be addressed by targeting measures that increase capacity and throughput, increasing the flow of effective hearings through the courts. These include the increased use of virtual hearings to run alongside physical hearings and extending court sitting times, within reason. Additional court space can be introduced by expanding the use of ‘Nightingale’ courts. Early and effective case management will also maximise throughput, ensuring that where trials are required to be listed, they are effective.

 

7

 

[1] https://www.justiceinspectorates.gov.uk/hmcpsi/wp-content/uploads/sites/3/2020/06/2020-06-24-COVID-19.pdf

[2] https://www.cps.gov.uk/sites/default/files/documents/legal_guidance/Interim-CPS-Charging-Protocol-Covid-19-crisis-response.pdf