CPS Speech - A prosecution service for the 21st century
9 January 2009
Keir Starmer, QC, Director of Public Prosecutions
This is the transcript of the address by Keir Starmer QC, Director of Public Prosecutions at London Metropolitan University on Friday 9th January 2009.
Last month - in a flurry of snow - I opened the new CPS offices in Barrow-in-Furness, Cumbria. Brand new building, very contemporary, full of light and everyone working in it can be seen by those outside - just how I want the Crown Prosecution Service to be in the 21st Century. Today I want to explore the role of a modern prosecuting service in helping to secure both the interests of the community, especially victims of crime, and the rights of defendants in criminal justice. And I want to point to some of the developments that I foresee as we continue towards our goal of making the CPS a world class prosecuting service for the 21st Century.
My vision is of a transparent, contemporary CPS which engages in an open and honest way with the communities it serves.
Let me state my key principle from the outset. The existence of a strong, effective and publicly respected prosecuting service is an absolute requirement of a fair criminal justice system based on the rule of law.
My vision is of a transparent, contemporary CPS which engages in an open and honest way with the communities it serves; which prosecutes cases firmly and effectively, but also fairly; and which is publicly renowned both for the quality of its casework and the high ethical standards it adheres to.
And I want the CPS to be an employer of first choice - the sort of place that the best graduates and the best lawyers want to come to. Maybe not for ever, but certainly at some time in their careers.
So how well does the CPS measure up to that vision at present, and what are the challenges that face us as we move forward towards achieving that goal?
First, some history to put our present position and our future direction of travel in context.
Before 1879, all prosecutions in England and Wales were undertaken either by private individuals or by the police.
In 1879, the office of the Director of Public Prosecutions was established, but the then Director's powers were limited to particularly serious or sensitive cases. So from 1879, and for another hundred years thereafter, the vast majority of criminal prosecutions continued to be investigated and prosecuted by the police.
That had serious ramifications in terms of oversight and quality control and in the early 1980s, the Philips Commission concluded that this could not continue. It was not appropriate for the police both to investigate and to prosecute crime. This followed a number of notorious miscarriages of justice. To enhance fairness and the quality of decision making, there needed to be a clear and transparent separation of these functions.
So the Prosecution of Offences Act 1985 set up the Crown Prosecution Service, creating for the first time an independent national prosecuting authority. And the DPP became its head.
But that did not get us to where we, the CPS, are today. Because the original remit of the CPS was extremely limited. And this was deliberate.
In the face of some tenacious opposition from senior police officers and the Bar, and not, I have to say, well supported by the Government of the day, the CPS was born in 1986, poorly designed and desperately under-funded. The function that was envisaged for the CPS when it was set up in 1986 was essentially that an instructing solicitor, receiving instructions, including the charge, from the police client, processing those instructions and instructing the self-employed Bar to present the prosecution case. That function was far too limited, unambitious and failed to deliver. Basic quality control, real value added and independent judgement were all missing - and it showed victims felt abandoned, defendants could point to very many deficiencies and the public had little confidence in the criminal justice system.
A shake-up was needed, and a shake-up was delivered. Gradually the idea that a strong, independent and effective prosecuting authority was fundamental to a modern criminal justice system - underpinned by the enactment of the Human Rights Act 1998 - began to take hold - and with it, the CPS began to find a voice. Important changes were made and the CPS was transformed from instructing solicitor to professional service.
Let me start with one of the most important changes to the way in which we do our business. The CPS now controls the charging decision. In his landmark report into the criminal court system in England and Wales, in 2001, Sir Robin Auld strongly recommended that this power should be transferred from the police to the public prosecutors in the CPS. He thought that charging should be the function of an independent and highly trained prosecuting lawyer.
He was right. The responsibility for deciding which cases should be prosecuted is critical and engages the rights of both victim and defendant, at a very real level. It defines everything else. It is the beginning of the criminal case. The first signpost on the road that may lead to personal catastrophe - even prison for some.
The Government accepted Sir Robin's recommendation and Parliament passed the Criminal Justice Act 2003, with strong all party support, which gave effect to that fundamental reform: public prosecutors now decide in all but the most minor cases who should be charged and with which criminal offences.
So prosecutors have moved into police stations to work side by side with investigators, giving advice and counsel where necessary. Sometimes we help police to design operations. Sometimes we advise them to stop operations or to run them in a different way. We are a legal resource that investigators need.
This charging reform represents a significant transfer of responsibility and fundamental power from the investigator to the prosecutor. And it's a major indication of what the CPS can do in the future. In essence, prosecutors now are the gatekeepers to the criminal justice system.
This reform has already begun to change cultures and attitudes towards the CPS. And, I think, for the better. For defendants as well as for victims. Because I have no doubt whatsoever that the involvement of public prosecutors from the earliest stages of an investigation, right through to the charging decision and beyond, far from being something to fear, will clearly and tangibly strengthen fairness and due process.
The recent prosecution in the Rhys Jones case is a good example. Eleven year old Rhys Jones was tragically shot on 22 August 2007. The very next day a CPS Crown Advocate was nominated as the reviewing lawyer.
After a painstaking evidence-gathering exercise, during which the CPS reviewing officer worked closely with the investigating police officers, the CPS took the decision to charge a number of individuals, all of whom were later convicted. Throughout this period, the reviewing officer made and maintained contact with Rhys Jones' parents, providing them with updates and clarification. And, ultimately, the reviewing officer, a Crown Advocate, was second junior at the trial.
This process, this involvement of prosecutors with police at an early stage, does not threaten the defendant's rights. On the contrary, it makes it much more likely that investigators comply with the rules and that abuses of the process do not occur. It makes it less likely that cases will be brought which are not justified by sufficient evidence. And, of course, it also makes it more likely that the right cases will be brought and that they will be stronger.
The results so far are all one way. Fewer cases are discontinued after they have been charged. And more guilty pleas are being entered.
The charging decision itself
But how do we make a charging decision? What test is applied? The Code for Crown Prosecutors is a public document, issued by me. In it I set out guidance that public prosecutors must follow in every case they consider.
The purpose is to promote transparent, consistent and fair decision-making. The Code sets out the two stages of the test that is applied by prosecutors when considering whether or not to prosecute a case.
The first is the evidential stage - there must be sufficient evidence for there to be a realistic prospect of conviction against each defendant in respect of each charge. The second stage requires us to consider whether a prosecution is needed in the public interest; it is important to realise that not every criminal act needs to result in the perpetrator going to court.
Here the prosecutor is granted an important and an empowering discretion. How this is used is crucial to justice. For example, many of you will be aware of the tragic circumstances surrounding the suicide of Daniel James, a young man paralysed from the chest down in a rugby accident. The police properly investigated the role that his parents and a family friend had played in assisting Daniel to commit suicide at a clinic in Switzerland.
Aiding and abetting suicide is a crime in this country and after reviewing the file very thoroughly I concluded that it contained sufficient evidence for a realistic prospect of conviction of Daniel's parents.
However, I also weighed the public interest criteria very carefully and I decided, that while there were public interest factors in favour of prosecution, not least the seriousness of the offence, these were outweighed by public interest factors that showed that a prosecution was not needed. I therefore decided that charges should not be brought against Mr and Mrs James or the other person under investigation. And I put my reasoning in the public domain.
I am aware that difficult decisions such as these excite the public's interest. In the case of assisted suicide, strong opinions are held on both sides of the debate. But the role of public prosecutors is to be fair, independent and objective and to use the discretion vested in them to decide whether to prosecute not only on the evidence but also on an assessment of whether it is right to bring such cases to court.
Bring fair and being seen to be fair are the cornerstone of all that we do. Fairness in all aspects of the criminal justice system is the cornerstone of the rule of law, and the exercise of discretion not to prosecute is as important as any other decision that we take.
This concept of fairness is the thread that runs through our assessment of the evidence that the police gather as well. Many of you will be coming to grips with the Police and Criminal Evidence Act 1984 and its Codes of Practice. If these Codes have been breached, if the defendant's rights have been violated, for example in a police station, and the evidence thereafter obtained is likely to be held inadmissible, a public prosecutor may exclude it from any assessment of the strength of the case. Often this will mean no prosecution - and this is a powerful tool.
In considering the public interest, prosecutors will also take into account the consequences for the complainant of a decision to prosecute or not to prosecute - and of any views expressed by the complainant or his or her victim's family. Of course their views are important. But they are not and cannot ever be decisive.
For example, we may sometimes prosecute in domestic violence cases even when the victim does not want a prosecution. Equally, in some cases of death by dangerous driving, when the driver is closely associated with the victim and the bereaved family do not want a prosecution, we may still prosecute.
Without exaggeration, decisions such as these and the decision I took in the case of Daniel James are life-changing for those involved. We can do no better than remember that when we come to consider the right course of action in any case. And the fact that the CPS now decides whether or not to prosecute in all but the most minor of cases allows us to make those decisions.
Let me move on the second important change in our recent history. This has been to turn our faces resolutely towards the public. It is obvious that, in carrying out their functions, public prosecutors must have the confidence of the public. That's what brings authority.
Communities are less likely to have confidence in a criminal justice system that seems to hover above them, peopled by prosecutors who are remote and who do not have any understanding of their relationship with the public. People are likely to become disengaged, switched off.
Of course it is the defendant who is on trial and the fairness of the proceedings is paramount. But the community, too, has a legitimate stake in fair outcomes.
So, quite contrary to what used to be believed, prosecutors must be responsive to, and engage with, the communities they represent. They must stop avoiding contact with the public. This includes engaging properly with complainants and witnesses.
Tackling this challenge has required us to take on additional duties and powers. Over the last two or three years, prosecutors have assumed responsibility for the routine care of witnesses pre-trial. Advice, reassurance, practical assistance, information. In recognition of the fact that often the criminal justice system can appear bewildering to those who come to do their public duty. We should never forget that the system is there to serve the community and not the other way round.
So, we have assumed powers to obtain increasing measures of protection to witnesses who take risks in giving evidence. The CPS was instrumental in providing practical advice that helped change the law - in less than three weeks - so that witnesses, in extreme circumstances, can give evidence without their identity being revealed to the defence.
Conducting pre-trial interviews with key prosecution witnesses to explore inconsistencies in their written statements and confirm their credibility as witnesses of the truth is another example of our greater engagement. It may surprise some of you to learn that until very recently prosecutors in England and Wales have traditionally kept at arms length from prosecution witnesses in all circumstances. This includes victims. So that far from interviewing them pre-trial, we didn't even talk to them.
That has changed. Prosecutors are now allowed, in appropriate cases, to interview the prosecution witnesses before a trial begins. As the defence have always done. This is obviously right.
Of course there are important limits to this. Because prosecutors must also remain steadfastly independent. This is an essential attribute of public trust. Decisions made by public prosecutors must be independent and fair. They must not be subject to any inappropriate pressure.
We all instinctively understand that decisions taken with independent spirit are more likely to deliver justice. Decisions that, for whatever reason, lack this essential characteristic risk miscarriages of justice. They are also likely to undermine confidence in the rule of law, upon which everything else depends.
But against that background we do need to engage with, and be transparent to, the diverse communities on whose behalf we carry out our duties as prosecutors.
We need to do our work better, more efficiently. Smarter. And we do it more and more publicly. We want to be clearer about how we do our work. And we want to be better informed.
So we go looking for information. We go out and consult community groups, the voluntary sector and other agencies. And we take account of what we are told.
When we've done this, we draft and publish our policy statements. And we invite judgement against them - your judgement. We have published policies on prosecuting domestic violence, racist and religiously aggravated offences, homophobic crime, serious sex crime and crimes against the elderly. Road death cases, too.
Prosecutors are also now obliged routinely to explain their decisions to people who are affected by them, sometimes in the full glare of the television and other media. It doesn't sound much. But it has only been the case since 2001.
This brings me to the other important change that has occurred in recent years to bring us closer to what I see as a 21st Century prosecuting service. CPS prosecutors now regularly conduct their own cases as advocates, not just in the magistrates' courts, but in the Crown Court too. We have broken into the arena where the most serious crimes are prosecuted. That was never envisaged when we were set up.
This is a key development in the role of the CPS and in our efforts to become a truly world class prosecuting authority, delivering the sort of service we should. The practical experience of prosecuting cases at trial strengthens the CPS at all levels. It improves our advice to the police. It improves our charging decisions. It improves our witness care. It will change the whole culture of our organisation for the better.
It will also increase our ability to attract and retain the most able lawyers. You cannot expect to be an employer of choice for criminal lawyers without the possibility of providing a full range of advocacy.
Much of what I have said to you about the reform of our role and our increasing power and influence within criminal justice makes us more attractive as an employer. And I am delighted to say we are finding it easier and easier to recruit high quality people. In particular, all over the country, increasing numbers of lawyers are joining us from private practice. In some areas there are now waiting lists. I welcome this and I encourage it. It's a very healthy development.
It is sometimes said that this development threatens the self-employed Bar. But that need not be the case. There is a vast amount of publicly funded work in the higher courts. And the Bar is well equipped and well able to compete for its share.
I have no doubt that, just as in other jurisdictions, future advocates will move backwards and forwards from the prosecution service to the Bar - as indeed I have. This process is a wholly good thing and it is clearly in the public interest.
So we have embarked on an energetic programme of training and recruitment. We are moving our people into the Crown Court in increasing numbers. We shall continue to do so. And we are a hugely diverse group of lawyers. I expect we can help to change the face of the courts for the better, too.
So, much has changed in the CPS over the last four or five years. We have succeeded in throwing off the mantle of the poor relation that our uncertain beginnings cast over us. I am confident that we can say we are now beginning to perform the role that a public prosecuting service should in the 21st Century.
But I am not complacent. Much has been achieved, but there is much more to do. More changes to make, to become a truly transparent, contemporary prosecution service that reaches further into our community and our criminal justice system - touching those parts which we have not reached - and for the better. Let me give you some pointers as to how I see the CPS making further strides ahead in the next five years while I am the DPP.
Taking on the responsibility for charging, as I have said, has been a significant change in our working practice, marking, in many ways, the coming of age of the CPS after 18 years in which we were very much the minor partner in the Prosecution Team. This is a vitally important role and we must not only get it right - as I believe we are, most of the time - but we must strive to deliver an even better service. Delivering more robust and dependable charging decisions to the police, with fewer avoidable delays and the minimum amount of bureaucracy that is consistent with adequate standards of accountability. We must become more skilled at offering pre-charge advice, based on our experience of conducting our own trials; providing sound, practical advice that helps investigators build solid, provable cases from the word go.
Our specialist prosecutors who deal with the most serious terrorist and organised crime cases already do a lot of this, to good effect, as recent successful prosecutions in a number of high profile cases testify. We must learn how to spread this good practice more widely and in the most cost-effective way to those other cases where it will make a difference, and help secure a just outcome. I have already given you the example of the Rhys Jones case.
We also have to strive to deliver an ever better service to the courts. Identifying early more of those cases that really should not be charged or be allowed to go on and clog up the courts. Being timely in preparing those cases that should be prosecuted. This means serving the right papers at the right time; getting better at calling the right witnesses and supporting them, so that they turn up at the right time, in the right place. Being ready to make progress at every hearing. Cutting out the need for unnecessary adjournments. Knowing the law and the facts of our cases inside out. Being prepared and able to assist the judge with advice on sentencing law. Keeping victims and their families informed so that they do not feel excluded from the process, even if they cannot always accept the outcome. Being transparent. Being seen. Being at the centre of it all.
With our partners in the Court Service and other criminal justice agencies, we are already delivering the benefits of new ways of working in the magistrates' courts. More streamlined processes designed to deliver just outcomes in the more straightforward cases with fewer delays and at less cost to the taxpayer.
Internally, we are changing the way we progress much of our caseload, by forming small dedicated teams of lawyers and administrators who deal with high volumes of cases and ensure that there is always someone on hand to deal with a query or make a decision.
These are all steps in the right direction, and we cannot let up with the pace of change. Given the present economic climate, we have to find new ways of working better, smarter and, being realistic, probably with fewer resources than in our recent past.
So we must constantly be on the look out for ways of reducing waste and trim it away. We need to use technology in new and creative ways to support our decision-makers and inform our partners and the public about what we are doing. We need to make more charging decisions by telephone, where that is appropriate to the case. We need to improve the dedicated electronic case management system with which we record and update cases, and produce routine documents automatically. We must continue to publish our policies on the Internet so that our staff and the public alike can have instant access to up-to-date, reliable information.
Of critical importance is to monitor and where appropriate improve the spread and quality of our in-house advocacy. As I indicated, in-house Advocacy is here to stay for the CPS. We shall continue to deploy our Crown Advocates in a wider variety of challenging cases as their experience and forensic skills increase. But we recognise that the rapid growth in conducting our own advocacy needs to be underpinned by robust mechanisms for assuring the quality of the advocacy we undertake. So we are developing a national system for advocacy assessment, based on a programme of observation and assessment, backed up with targeted training and mentoring. Validated nationally to ensure uniformly high standards but delivered locally to be most effective. A Pathfinder project to test the approach is already underway and will be evaluated shortly.
In this context you will be interested to learn that the Legal Services Commission is also piloting a system for quality assuring publicly funded criminal defence advocates. Clearly, this is going to be a feature of advocacy services for the future and I am glad that the CPS has taken a lead on it.
My personal vision is of a set of publicly assured common standards which apply to all advocates whether in-house or external. We already have gradings from level 1 to level 4. This would be good for the public in driving up standards across the board. And it would also make it easier for the most able advocates to move across the sectors from public to private employment and back again, as their careers developed. So, for example, a law graduate who wants to be an advocate might join the CPS at the beginning of his or her career and develop his or her advocacy skills to level 1 or 2. He or she might then move to a defence practice - either in a solicitors firm, or at the self-employed Bar - further develop his or her advocacy skills to level 3 or 4 and so on. Some, of course, may start with a defence practice and move at different times. But whatever the individual portfolio, I am sure this is the future of advocacy and I am keen to make sure that we reach this position as quickly as possible.
I've spoken about how we have improved our communication and means of consulting the public over the last five years. I see this as a core element of a prosecution service in the 21st Century - the sort of transparent contemporary CPS I want to build. So we shall continue to look for ways to engage more fully with the various communities that make up our diverse society.
As part of this, I believe the CPS has a duty to explain its work to the public. An important part of this is done through the media. We already have in place a protocol with the media, which means that we release more information than ever before about the work we are doing, in a spirit of openness and accountability. The CPS has a small but busy Headquarters press office. We are now in the process of expanding that capacity by establishing full-time communication managers at our regional operational centres as well. We believe this will lead to a higher level of public awareness at a local level about what we do, and increase public confidence in us.
We are also reaching out and consulting our communities in other more direct ways too. Take the way we are responding to crimes with racial, religious or homophobic motives, for example. All CPS Areas have now set up Hate Crime Scrutiny Panels. The purpose of these panels is to scrutinise how we have dealt with hate crime cases in order to learn how we can continue to improve our handling of cases. People outside the CPS, people with experience of supporting victims of racist and religious hate crime, sit on these panels and help us to review our practices and formulate our policies.
We have also established more general Community Involvement Panels. People from diverse backgrounds including people from groups concerned with challenging racist and religious discrimination take part in these panels.
Community Involvement Panels are a practical way of ensuring that community engagement is a part of the core business of the CPS at a strategic level. They offer a means of both consultation and community participation on a regular and structured basis. Community representatives on the Panel are consulted on local CPS planning and strategy, business plans, service delivery, high level performance outcomes and the implementation of local Equality Schemes.
I think we can go still further and develop new ways to engage with the communities that we serve. That does not mean that we should replicate the community engagement work others such as the police are doing. But, if our media strategy is to have real meaning we must ensure that the information we release is truly available to everyone - whatever means of communication they prefer! In that way we can embed our openness and accountability more deeply.
I have taken you through the CPS at a local and national level: there remains one further level which is equally important - the international level. A modern prosecution service recognises - and so we recognise - that criminals do not regard national borders as obstacles: they often operate on the basis that while they can cross them with impunity, the law enforcement agencies and the prosecuting authorities find that process more difficult. And so a fundamental part of our work is to break down any artificial barriers between countries which hinder our ability to follow criminals and their crimes.
As a first step, the CPS has resident prosecutors - Liaison Magistrates as they are called - in the United States, Italy, Spain, France and Pakistan. These important posts speed up the processes through which vital evidence is obtained from abroad, fugitive suspects are returned and prosecution expertise and local knowledge is shared across international borders.
But more than this, in a world that is increasingly inter-dependent, reducing harm to communities in our country means helping to reduce it beyond our shores, too. Working in a joined up, sustainable way with international partners to deliver meaningful change in countries far from our own, and build up investigative links.
Though our busy International Division, we are responding to and anticipating the challenges that this new global dimension brings to our work. Working with other Government Departments and law enforcement agencies, the CPS has developed co-operative links with prosecutors in other countries in Europe, Africa and the Caribbean. Recently, it has arranged for CPS prosecutors to go to Afghanistan to liaise and to assist local agencies there with their work against corruption.
Helping other countries to build up their own capacity to deal with crime within their borders means that less of that crime should reach our shores and cause harm here. You only have to consider how some crimes in this country may have been avoided if the perpetrators had been detained and dealt with at an earlier stage in their home countries to realise how important helping other States to maintain a robust criminal justice system is to us here.
This internationalisation of our response to crime is another area of our work that I expect to see grow in the years to come as the CPS broadens its vision and delivers a worldwide prosecution service.
And so in finishing, then, I hope that some, at least, of what I have said has helped you understand how the CPS is positioning itself for the 21st Century.
Respect for and protection of human rights should be at the heart of a transparent, contemporary prosecution service. Victims of crime have a right to have alleged offences investigated thoroughly and prosecuted effectively. That requires the CPS to work closely with the police at the investigative stage in serious and complex cases, ensuring that relevant evidence is gathered which will be admissible at trial. It requires the CPS to make the decision whether or not to charge in all but minor cases. This is fundamental. If the right charge is brought at the right time against the right individual, the chances that a case will succeed increase dramatically. Any other result is a profound let-down for victims and their families and often adds to their sense of abandonment. Victims and witnesses also have a right to be treated with respect and dignity throughout the prosecution process. And it is the task of the CPS to ensure that is the case - providing information, re-assurance and protection where appropriate. Then there are the rights of defendants. They have a right to be presumed innocent until proven guilty, to participate effectively in the trial process and to a high degree of fairness. Balancing the rights of victims to an effective prosecution and the rights of defendants to a fair trial is the daily diet of the CPS - and we do it very well.
I have deliberately placed great weight today on the role of the prosecutor and their relationships with local communities. And I want to return to that theme as I finish. It seems to me that at the heart of the criminal justice process and the developing role of the prosecutor is the concept of a contract. To a large extent, the concept of a contract underpins the criminal justice system. I believe that people will accept an enhanced role for prosecutors so long as we make a bargain to hold fast to values of fairness, impartiality and independence. That is to say, that in playing a more central role in prosecuting criminal activity robustly, promptly and fairly, we aim always and only for safe convictions in which the public can have confidence.
All this is ambitious. More power to decide and shape cases, more engagement with the community, more respect for victims and witnesses, a greater role in court, a profound attachment to independence and due process - these, I think, are the features of a prosecuting authority which is fit for public purpose. These are the building blocks of a prosecution service for the 21st Century.
Keir Starmer QC