“The next five years will be challenging ones for the criminal justice system as a whole” according to HMCPSI Chief inspector Kevin McGinty, speaking at the Criminal Justice Management Conference on 23 September 2015. “The debate needs to be properly informed. That, if anything, is the purpose of an inspectorate.”

Kevin McGinty, Chief Inspector, gave the following key address at the Criminal Justice Management Conference, 23 September 2015, at the QEII Centre, London.

I regret that I have been unable to attend the morning sessions but I would be surprised if a conference with the title, “The Future of the Criminal Justice System” has not touched on the impact funding cuts have had on the ability of the various agencies to act effectively.

It is true, to an extent, that a budget cut can act to improve services and make them more efficient as it can make us reassess what we do and how we do it. But there comes a time when there is no fat left to cut and an agency is no longer able to provide the service expected of it.

I want to explore this afternoon how the criminal justice agencies with which I work, and which must reach their decisions independently, are nevertheless held to account for their performance.

HMCPSI has a statutory duty to inspect the Crown Prosecution Service and the Serious Fraud Office. These are two very different organisations.

The SFO is a single office based in London. It was established in April 1988 and now has a staff of 477. It operates what is known as the Roskill model. This is where investigators, lawyers, forensic accountants and other specialists all work together, from the outset, to investigate and prosecute cases. It is a very specialist organisation with expertise in, as the name suggests, serious fraud, bribery and corruption.

To a greater extent than for other criminal justice agencies, its reputation is of vital importance to its effectiveness. The SFO tackles the top-most tier of serious economic crime and the majority of its cases are high-profile. One error or failure can lead to prolonged and detailed criticism in the media. The fallout from the mistakes made in the Tchenguiz case received coverage for years. Reputation is so important to the SFO because it needs to be recognised as effective by the City, the media and the defence firms that specialise in white collar crime if it is to be seen as a real threat to those engaged in serious fraud. Fraud is also often multi-national and the SFO has done well to hold its own with specialist prosecutors in other countries, particularly in the United States, whose universal jurisdiction can lead to disputes about ownership.

The current Director of the SFO, David Green, has taken a different approach to his predecessor, concentrating on prosecutions rather than seeking civil settlements. His success in the prosecution of Tom Hayes in the first LIBOR trial together with the sentence imposed has had a huge impact.

The CPS is very different; it employs around 5,600 people, just under half of which are prosecutors, and is a national organisation operating in 13 Areas with offices across the country. It does not investigate cases but it does advise the police, and makes decisions on whether or not to prosecute cases and it then takes the relevant cases through the courts system. It is both a generalist and a specialist prosecutor. With a duty to take on all cases referred to them by the police, this means that it has to deal not only with the day to day work in the Magistrates’ Courts, but also, by way of example, serious fraud, terrorism, complex crime, child abuse, domestic violence and historic sexual abuse cases. It’s an entirely reactive organisation in that it can’t pick and choose its cases but has to manage its workload with what it’s got, and if there’s a sudden increase in work, it has to juggle its priorities in order to cope.

At one stage official figures showed that crime levels were reducing. This was a relevant factor in determining by how much the CPS budget was to be reduced. But that reduction doesn’t show the whole picture. There has been a significant increase in more complex work. So, for instance, this year the CPS are expecting 520 new counter terrorism cases to consider, the number of prosecutions involving violence against women and girls is higher than ever and the CPS has witnessed an upsurge in allegations of historic child abuse. The problem is that these are by their nature complex and resource intensive cases.

In the last five years the CPS has reduced its staff size by 30% losing 2467 individuals. It has undergone considerable structural change in order to meet the financial challenges it faces and although some lower level cases, such as the proof in absence, are now dealt with by the police, there has been a large increase in the number of complex, sensitive and resource intensive cases. It has had to manage all these changes without there being any break in its day to day work. So how has it managed? Well, that rather depends on who you listen to. The media, generally, have a rather negative view.

Last Monday, the BBC programme File on Four considered CPS performance. The programme heard from two former Chief Crown Prosecutors – one anonymously, a former DPP and a former Principal Legal Advisor. It spoke to defence solicitors and it trawled through a number of CPS failures. It was a programme that solely featured negative stories and concluded with the question – is the CPS in a state of collapse?

Two examples that featured were failing to mount a successful prosecution for the offence of female genital mutilation and pursuing, but then suddenly abandoning, 10 Operation Elveden cases, involving allegations of illegal payments by journalists. These were high profile cases and are all proper matters for public debate. But it might be more valuable if it was a better informed debate.

In saying this I do not mean to be critical of media coverage of prosecution cases. These cases are properly of public interest and it is right that the CPS and SFO should be held to account. My point is that the coverage tends to be only of prosecution failures. This can be misleading. It is a fallacy to consider a not guilty verdict as a case wrongly brought. It is not for the CPS to determine the guilt or innocence of the defendant. It is not for the CPS to withhold from jurors cases that are properly theirs to consider. A case thrown out at half time following a successful submission of no case to answer is of course a different matter. But even then, it may have been a proper case to bring if the cause of the failure was a witness failing to come up to proof or some other change in circumstances.

The prosecution of a doctor for FGM led to an acquittal but it had been left to the jury to consider which means that the trial judge – an extremely experienced criminal High Court judge – agreed that there was enough evidence on which a jury might properly convict and was, therefore, a proper case to have been brought. Nor do I recall any prosecutions of journalists being dismissed at half time. As for the decision to discontinue these cases, I recognise the pragmatic approach taken by the DPP in the light of a line of decisions by jurors not to convict. It’s a case of damned if you do, damned if you don’t. The CPS is criticised for not bringing prosecutions and it is criticised when it does.

The SFO and CPS are organisations that spend a considerable sum of tax payers’ money. More importantly, they have the responsibility for dealing with cases that have an impact on people’s lives. There is no such thing as a victimless crime. Yes, they must reach decisions independently. No, their decisions should not be influenced by financial considerations or through fear of negative press. But independence does not mean that they are not accountable. They are accountable to the Attorney General, to Parliament and they are accountable to the public they serve.

My point is we should ensure that the future of the criminal justice system is based on a fully informed debate.

Bad news sells and a successful prosecution does not make good news. Nor does the CPS benefit from a conviction – it is likely the news story will be more about the good investigation work carried out by the police. A success statement made to camera on the steps of the court can look like triumphalism and must be treated with circumspection. And where there has been an acquittal, the police might get away with “we’re not looking for anyone else in this investigation” but the CPS has to be very careful in justifying bringing a prosecution if it is not to be accused of undermining the jury and the innocence of the defendant.

In reality very few of the public have direct contact with the Criminal Justice System and the opinions they hold will largely be based on what they have read or heard in the media.

In fact, the CPS deals with over 600,000 charged cases a year. The vast majority of those are dealt with effectively and competently and nothing is ever heard of them.

It is clear then that the SFO and CPS are examined and held to account by the media and the public. But it is also clear that, whilst learning from mistakes, they must be careful to remain independent and not improperly influenced by public opinion – opinion which can be notoriously fickle.

So against that background, what is the role of the Inspectorate? Should it take all these pressures into account and seek to protect the CPS and SFO from unjustified criticism? Should it alter its approach when inspecting in times of austerity, taking into account limited resources? And is the picture of the CPS in danger of collapse a true one?

In my view, our role is to carry out inspections so as to collate independently verified evidence on matters critical to CPS (and SFO) performance and report those findings honestly and fairly, thereby allowing others to hold those organisations to account.

By those others, I mean the Attorney General, who superintends the CPS and SFO, the Justice Committee which questions the Attorney General, Parliamentarians, Police and Crime Commissioners, the media and the public. I do not see it as my role to seek to run the CPS or SFO or tell them how to do their job. I may make recommendations but it is for them to decide whether to follow them. However a failure to follow recommendations, especially when compounded by a lack of improvement, is something that may be commented on in a follow up report, which as a bad news story is likely to be picked up by the media, so there is some motivation to take heed of the recommendations.

Neither do I seek to express a view on whether the CPS is underfunded. I may comment on whether a particular unit does not have the resources to do its work as financial management is part of our inspection framework, but in respect of the CPS as a whole, unless I knew exactly how every penny of the budget was spent – which I do not – I can’t differentiate between underfunding and poor financial management. But when further budget cuts are being considered, I believe it is the responsibility of the Inspectorate to warn Ministers if we feel that the CPS is failing. As a relatively new Chief Inspector I have reassessed my own available resources and introduced an annual review of all CPS areas, similar to HMIC’s Peel programme – so as to provide a health-check snapshot of the CPS over the course of a year. My aim is to give those who do hold the CPS to account, the most accurate and balanced picture of the CPS as a whole, across its total spectrum of work, in order for them to make their own decision on what needs to be done.

Is the CPS close to collapse? No, I don’t believe so. Is it perfect? No, and if it was, I would be out of a job. It is still getting too many decisions wrong. My inspectorate has not shied away from pointing out areas where the CPS needs to improve, particularly in the areas of discontinued, ineffectual and cracked trials.

I think the next five years will be challenging ones for the criminal justice system as a whole. I think that Ministers are likely to want to seriously consider whether we have a criminal justice system that provides not only justice, but also value for money. There is a debate to be had. But if that debate is to produce anything of value it needs to be properly informed. I will not say – Don’t believe everything you read in the press – but I will say that there are more valuable sources of information that give a more balanced view of what is actually happening. That, if anything, is the purpose of an inspectorate.

Thank you