THE SECRET BARRISTER AND CIVIL LITIGATORS 3: “WHAT ABOUT OUR STATISTICS: “AN OUTRAGEOUS INTERFERENCE WITH THE RULE OF LAW

Chris Dale has done a proper. full-blown, review of SB’s book.  I’m still looking at it piecemeal.  Here I want to look at “targets”, statistics and the dangers they pose to the administration of justice.

SB ON STATISTICS

SB gives examples of strange, if not ludicrous, decisions to prosecute. In one case, where the defendant was charged with “biting”, the complainant was not sure he had been bitten , thought it was an accident anyway, agreed with the defence case, and the defendant had pleaded guilty to more serious charges, the prosecution wanted to go ahead. SB telephoned the senior person at the CPS, safely ensconced in an office, advising in the strongest terms” this case be knocked on the head (SB’s phrase not mine).

The answer is telling:

“What about our statistics”.

THE JUDGE’S RESPONSE

“And we found ourselves in the judge’s chambers at an impasse, no one at court, least of all the victim, thinking that a trial was a sensible idea, but our hands tied by an office-bound civil service craven to his statistics. The judge’s expletive-filled reaction when I mentioned that the word “statistics” had arisen in my discussions with the CPS was most unjudicial, but entirely apt.”

AND THE SOLUTION…

The judge directed that the CPS District Prosecutor attend court to explain his decision in person. SB rang to inform him of this edict

“… no sooner had those words left my lips and whizzed down the receiver did the curt reply spring forth: “Look, just offer no evidence, goodbye”.

STATISTICS AND JUSTICE CAN BE A VERY DANGEROUS MIX

This has to be seen in context. SB is, if anything, highly sympathetic to the plight of the CPS, with decreasing resources and a burden that is at times unbearable.  However there is an added pressure “Don’t spook the CPS statistics”

This leads to decisions being taken that defy logic and commonsense.

Chapters on the Magistrates’ Court (and increasingly the Crown Court) emphasise how defendants are being channelled through the system, the main criteria often being to meet “targets”, rather than consider the overall interest of justice.

AND ITS EFFECT ON CIVIL LITIGATION?

I suspect that the reason we have so many problems with civil listing is that people are under pressure to meet targets and comply with statistics.  When statistics are being prepared the suffering of victims, witnesses, defendants is not even a factor.

BUT MORE FUNDAMENTALLY: “AN ABSOLUTELY OUTRAGEOUS INTERFERENCE BY THE EXECUTIVE WITH THE RULE OF LAW”

There are real dangers in mixing statistics and law, in imposing “targets”. The best example of this came from the one legal blogger who could out-write even the Secret Barrister. When the late Sir Henry Brookes found out that there was a performance target imposed for “mandatory reconsiderations” of personal independence payments (pip) his language (although remain judicial) was damning.

THE BACKGROUND

A change in the law meant that claimants whose claims were  rejected by the DWP  could not appeal immediately but had to submit their claims for “mandatory reconsideration” by the DWP. It transpired that those carrying out the “reconsideration” which was supposed to be a totally fresh review, were given “targets” and expected to reject 80% of applications.

THE SWORD OF TRUTH WAS HELD BY SIR HENRY BROOKE

“New statistics have shown that in 87% of these mandatory reconsiderations the original decision is upheld. Now we have learned, through the response to a Freedom of Information request, that one of the DWP’s Key Performance Indicators – a management device through which the relevant civil servants’ achievements and promotion prospects are measured – is that the decisions in at least 80% of these cases should be upheld in the department’s favour following mandatory reconsideration.

This appears to be an absolutely outrageous interference by the executive with the rule of law.

… it is altogether unspeakable that DWP managers seek to incentivise those who turn these applications down – and what is more, they do not make this policy public.

It would be good if this extraordinary disclosure were to provoke uproar in the highest places.”

SO THERE ARE “TARGETS” AND STATISTICS AROUND THAT WE DO NOT EVEN KNOW ABOUT

As Sir Henry notes this policy was not even made public.  It is a matter of concern that similar hidden (and ultimately perverse) incentives may lie around hidden under all aspects of our administrative and judicial system.  As I have noted this is one (and perhaps the only) explanation for the problems we see in listing. We have to be very careful. If statistical targets were imposed upon judges then this would be the end of justice as we know it.