Chief Inspector Kevin McGinty delivered a speech as part of the ‘Future of Criminal Justice Management’ conference in Salford on Wednesday 2 December. Speaking to representatives from various sections of the criminal justice system, including representatives from the police, members of the crown prosecution service, and representatives from youth offending teams among others, the CI outlined the history of the creation of the CPS, and addressed the debate over the return to police-led prosecutions, and pressures faced by the CPS.
The full transcript of the speech is below:

---

 

My career has been spent within the criminal justice system. I practised at the criminal bar for six years; I spent four years within the then young CPS, and spent some 23 years in the Attorney General’s Office before taking up my role as Chief Inspector. The criminal justice system has been my daily bread throughout that period and like many here today, whether speaking or in the audience, I care deeply about it.

Let me start by saying something about Her Majesty’s Crown Prosecution Service Inspectorate, or HMCPSI, for those who may not be familiar with it. The first thing to say is that we are not part of the CPS. We are, like other criminal justice inspectorates, independent of the bodies we inspect. I am subject to the superintendence of the Attorney General but that is a yoke that lies easily and I do not consider my independence to be affected by it. The second thing is I have a statutory duty to inspect not just the CPS but also the Serious Fraud Office or SFO. Thirdly, that I do not consider it my role, at least not directly, to improve CPS or SFO performance. I see my role to be to conduct inspections that provide independently assessed evidence that allows others to hold the CPS and SFO to account. By others, I mean the Attorney General, who is responsible to Parliament for both prosecuting agencies, to Parliament, who holds the Attorney General to account, to stakeholders and bodies who have an interest in the criminal justice system and to the media and the public.

Some here will know that the CPS was created following the report of the Royal Commission on Criminal Procedure set up in 1978 under the chairmanship of Sir Cyril Philips and which reported in 1981. Royal Commissions seem to have gone out of fashion in recent years, probably because of expense, but it is hard to overemphasise how central a role this Commission had in forming the system we have today. Prior to the creation of the CPS, prosecutions were generally the responsibility of Chief Constables, although control did ultimately lay with the Attorney General and the Director of Public Prosecutions given their powers of intervention. The police still needed legal advice to make prosecution decisions and, in most areas, this was provided by a prosecuting solicitor’s department.

But the role of the prosecuting solicitor was essentially advisory; it advised the police and conducted prosecutions on their behalf, but it was the police who controlled the prosecution process. That solicitor/client relationship, with the police having control, was at the centre of a number of miscarriages of justice, which gave rise to concern both for Government and more generally and led to the setting up of the Philips Royal Commission. Two important pieces of legislation were the fruit of the Commission. The first was the Police and Criminal Evidence Act of 1984 which revolutionised the responsibilities of police when investigating crimes and the second was the Prosecution of Offences Act 1985, which the CPS.

However, although Philips is often quoted as the justification for the independent, national prosecution service we have, that is not quite what it recommended. What it recommended, and I quote, was a “statutorily based prosecution service for every police force area”. It went on to say, “The prosecution service should be locally based, but with certain national features. All but one of us consider that a centralised national system would involve a large bureaucracy and tend to lead to slow and remote decision taking”. It also said, “A majority recommends that the Crown prosecutor should be accountable to a police and prosecutions authority, a development of the police authority”. However, it goes on to recommend that the Crown Prosecutor should be accountable to the new authority only for efficiency issues and not for individual decisions.

The then Government did not quite follow the recommendations of Philips in that it created the CPS, a national prosecuting agency answerable to the Director of Public Prosecutions at its head. The DPP was in turn to be subject to the superintendence of the Attorney General.

The commitment in the Conservative Party manifesto is to “speed up justice” by extending the use of police-led prosecutions . That is a worthy objective but simply removing the CPS may not guarantee that it will be achieved.

We have, over the last few years, seen a large number of cases in the magistrates’ court being returned to the police. Essentially these are offences that can be dealt with in the absence of the offender, although some lower end shoplifting offences are caught too. That key point is that only guilty pleas are dealt with by the police. What it means is that it has taken the CPS out of cases in which it in fact had little or no input. That has to be to the good as the CPS cannot afford to engage in work to which it adds no value. So what would a further extension of the police led prosecutions principle look like and would it be a good or bad thing?

My inspectorate is currently concluding an early inspection of the Transforming Summary Justice programme. This programme, which was introduced in the Magistrates’ Court in May of last year, is designed to reform the process of summary justice by reducing delay, with fewer hearings and more trials effective on the day. Central to the scheme is the responsibility on the police to assess before the first court appearance whether the offender will plead guilty or not guilty. If the assessment is a guilty plea then it will be allocated to a court – a guilty anticipated plea (or GAP) court and the amount of paperwork the police need to complete is reduced – in simple terms, enough to deal with the guilty plea. If the assessment is a not guilty plea, then the case is allocated to a NGAP – a not guilty anticipated plea court. Here, the purpose of the first hearing is to ensure that everything is done to ensure the trial date is effective – so ensuring the evidence is all in place, any issues such as special measures, interpreters, CCTV and so on are dealt with. The hearing is essentially practical. In one court I sat in to observe, the district judge went so far as to order the CPS to ensure that if it was to rely on CCTV evidence at trial it was to check that the video equipment in the trial court was compatible with the CCTV media. It is this sort of attention that is intended to reduce the risk of a trial having to be adjourned, or lost.

We do not publish the report until February of next year but I can tell you that the principle of TSJ seems to be a sensible one, which could make a huge difference to the efficiency of summary justice. But there are teething problems. One major problem is that the CPS is still trying to deal with a backlog of cases that means it cannot concentrate all its time on new cases as they come in. The second is that although the police are generally good at correctly identifying GAP and NGAP cases, they are not so good at identifying and collating the necessary evidential material for effective hearing. The CPS is having to chase the police for material – a waste of CPS and police time. The police are also having difficulty with getting disclosure right and within time.

None of this is perhaps surprising and the answer is said to be in training for the police. An individual police officer may only be engaged in preparing a case once or twice a year.

So what would an increase in police led prosecutions look like? I think it is clear that within the TSJ programme, which has the support of the National Criminal Justice Board (which has the Home Secretary, Justice Secretary and Attorney General amongst its number) there is scope for an increase in police involvement in GAP cases.

There are, however, those who think police led prosecutions should go further and allow the police to prosecute not guilty pleas and perhaps hand all prosecutions in the Magistrates’ Court back to the police. Given the financial pressures the criminal justice system is under, given the poor experience victims and witnesses have in engaging with the system, I believe all options should be open for consideration. After all, the Philips Commission recommended a local, police force based, prosecutorial system. Such a system would be able to meet local needs, and might allow a closer engagement with victims. However, whether it is a financially suitable model is a matter that requires further debate.

There are, I accept, powerful arguments in favour of localism just as there are about the efficiency of larger units. It is a debate the CPS is currently having internally about its structure.

Originally the CPS consisted of 31 areas, each headed by a Chief Crown Prosecutor. A year later in 1987 the structure was changed to accommodate four regional directors to which the CCPs reported. These only lasted two years before they were removed. In 1993 the number of Areas was reduced to 13. In 1998 the CPS was re-organised once again, this time to 43 Areas, each Area co-terminus with a police force. In 2010 the CPS reduced its Areas to 13 and now it is consulting on whether to reduce further.

There are clear advantages to a model based on larger units. It is fair to say that a pressing reason for the reduction in the number of Areas both in 2010 and now is to reduce costs. Centralisation of functions drives efficiencies with economies of scale and flexibility of staff. By way of example, digitisation has enabled South Eastern CPS to have dedicated caseworkers based in Newcastle. However consistency should also improve. Recently the CPS introduced standard operating procedures to make internal processes consistent nationally and these should be easier to implement across fewer but larger areas.

However there are disadvantages to this model. The inspectorate has seen in many areas a deterioration in the working relationship between the police and CPS. One reason for this is the difficulty that an area now has, trying to work with a number of different police forces (up to five in some areas), which are all autonomous and, since their introduction in 2012, a number of police and crime commissioners as well, all with differing priorities. This difficulty will be exacerbated if the areas are made larger, thereby increasing the number of police forces with which one area has to deal.

But in any debate about whether prosecutions should return to the police, we should not be misled into thinking everything would be easier and more efficient. There are sound financial reasons why the CPS has moved to fewer areas. There are sound financial reasons why the Court Service has had to close more and more courts and increase the catchment areas of the courts it has. A locally based prosecution service will not be immune from those pressures. It will also have to face the challenges of offending that crosses force boundaries. This is of course already faced and dealt with successfully in terms of investigation but Police and Crime Commissioners elected on the basis of a political manifesto may add complications. The very issues that make the existence of PCCs a good thing – such as the fact that they are elected and answerable to the community for their actions – immediately create a pressure to ensure the forces they are responsible for are, in public opinion, effective and successful.

This gives rise to the wider question, what does a successful and effective prosecution system look like and what indicators do you use to measure success or failure? I intend to look at two – media and the experience of victims and witnesses.

A successful prosecuting agency is not one which is successful in all the cases it brings. A high conviction rate prompts the question of whether the prosecutor is risk averse, only bringing cases where the evidence is overwhelming – which means the role of the courts in determining innocence or guilt is being thwarted by the prosecutor. Nor is it one where the conviction rate is very low – that would mean the prosecutor is bringing cases which should not have been brought in the first place, thereby causing unnecessary expenditure by the CPS, police and courts, delays in the criminal justice system and needless upset for victims, witnesses and defendants.

The media, generally, have a rather negative view of the CPS. The pressure on the current DPP and the endless criticism and negative stories over the prosecution of journalists has been sustained and fierce. The principle that it is not for the prosecutor to determine guilt or innocence has been ignored. A journalist acquitted is, in the eyes of many, a journalist wrongly prosecuted. It is not. I am not aware of any prosecution of a journalist which was withdrawn by the trial judge after the close of the prosecution case. If it had been that might suggest a wrongly brought prosecution. But one that is left to a jury is just that – one which the judge thinks ought to be decided by a jury and, it follows, rightly brought. There were similar criticisms of the CPS when a number of high profile defendants were acquitted in the first cases of historical child sexual abuse. The CPS was accused of a witch hunt against celebrities. But again experienced judges were happy for the cases to progress to their conclusions – there was no suggestion of wrongful prosecution. And once there had been some convictions such as Rolf Harris, public opinion turned in completely the opposite direction.

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 should be held to account. My point is that the coverage tends to be only of unsuccessful prosecutions.

Three points: First, Bad news sells and a successful prosecution does not make good news. That is not criticism but an observation. 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. 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 well.

It is clear then that the CPS is 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.

Referring back to the debate about the extent to which prosecutorial powers should be returned to police and PCCs. If public perception struggles with understanding and believing that a national organisation like the CPS acts without fear or favour in reaching a decision to prosecute, what will be the pressures on maintaining public confidence in a locally based system under the control of individuals with a vested interest in its perceived success?

If there are dangers in using the media and public opinion as indicators of the success of the prosecuting authority, then there are also issues over using the experience of victims and witnesses. No defendant, victim or witness wants to be part of a prosecution. For the innocent defendant there is the terror of a wrongful conviction, for the guilty, conviction and sentence. For the witness there is the potential trauma of the unfamiliar experience of giving evidence in a public court and the perhaps deeply unpleasant experience of being cross-examined – a poor reward for the witness who has gone out of his or her way to act in a publicly spirited way to uphold the rule of law. For the victim, the victim who may suffer all that a witness has to suffer, may have the additional pain of seeing a defendant who she knows raped her, or robbed her, or perhaps killed her child, being acquitted and declared innocent because the prosecution cannot prove the matter to the jury beyond reasonable doubt.

I once took part in a meeting involving a number of consumer groups on “customer satisfaction” with the criminal justice system. I was not a popular contributor. For one, I challenged the idea seemingly generally held that the “consumer” was the victim. I became more unpopular when I argued that even if the defendant, victim and all the witnesses were unhappy about a case, that did not mean that it had not operated exactly as it should.

Let me give you an example. One of the roles of the Attorney General is to refer to the Court of Appeal for review a sentence that he considers unduly lenient. The process is one which I believe provides the best achievable treatment of victims or families of victims. First, anyone with or without a connection with the case, can complain about a sentence and provided it is for an offence that falls within the scheme and is within the statutory time limit for consideration, will be considered. Lawyers within the Attorney General’s Office will call for papers from the CPS, will provide a detailed briefing, often with advice from both prosecuting counsel and an independent advice from one of the Treasury Counsel from the Central Criminal Court. Each and every case will be considered personally by either the Attorney General or Solicitor General. If they decline to refer the case a letter will be drafted by the lawyer who drafted the briefing note and it will be approved, amended and signed by the Attorney or Solicitor General. If it is referred, the victim or the family will be notified and kept informed of hearing dates. If they attend court, the lawyer from the Attorney General’s Office will meet with them and explain the process. They will also meet with Treasury Counsel who is presenting the case. After the case is over both counsel and the AGO lawyer will speak to them again to explain what happened.

On one occasion, whilst at the AGO, I went to hear one of the cases. It was not a case I had been engaged in and so was not involved in meeting with the family, I simply sat at the back of the court – as it happened, and unbeknownst to them, behind the victim’s family. The case was one of causing death by dangerous driving. A young man with a promising and already successful career, was driving home from a golf club when he decided on a dangerous overtake. He collided with an elderly man driving a car in the opposite direction – absolutely faultlessly. The old gentleman was killed and it was his daughter, son in law and granddaughter I was sitting behind. The defendant had contested the matter on the basis that the overtaking manoeuvre was not it itself dangerous or was not sufficiently so as to constitute dangerous driving. He was of positively good character. He was convicted and given a prison sentence. The Attorney General was of the view the sentence fell outside the limits of the guidance provided for that sort of offending and had referred the sentence as unduly lenient.

The Court of Appeal heard the representations made on behalf of the Attorney General and then listened to the QC representing the young man. In his submissions he mentioned that although the offender had chosen not to be presented from prison, his mother had chosen to attend and was in court. Nothing else was said of the mother. In giving the decision of the Court, the Lady Justice chairing the court spoke sympathetically and understandingly of the impact the elderly gentleman’s death had had on the family. However, she also turned to the mother of the offender and expressed some sympathy for the position she found herself in and thanked her for attending the court. The daughter of the deceased was clearly furious and upset by these comments. I could hear the angry whispers about the mother of the offender and questioning why anyone would have any sympathy with her. She had not lost anyone. Although the sentence was in fact increased, I know that in the conversation with counsel the family had after the hearing, they were distraught, believing that the feelings of the offender’s mother were more important than the fact that their father had been killed through her son’s wrongdoing.

I think that example shows the risks of seeking to test the effectiveness of a process as complex and emotionally weighted as the criminal justice system by the reaction of those caught up in it. I don’t criticise the reaction of the family who had clearly been devastated by the pointless and avoidable death of a much loved father. But nor can I criticise the comments of the judge in recognising the loss, lesser but no less real, that the offender’s mother suffered. The process, on the face of it, worked as it should, but no-one was happy.

I realise I am at risk of being misunderstood here. I acknowledge that victims and witnesses have and continue to have a bad experience of the criminal justice system and I believe we should be doing everything we can to make it easier for them. HMCPSI are working on four witness impact reports at the moment and recently published a joint report with HMIC on vulnerable witnesses. I think that the lawyers amongst us, or those with everyday contact with the trial process, too readily underestimate the impact the system has on those who are unfamiliar with it. Some of you will have read the briefing document from the Criminal Justice Alliance published in October and entitled “Structured Mayhem”. It is an indication of just how wide is the divide between professionals and the victims, witnesses and defendants who find themselves caught up in the process.

But even as we just begin to really work on improving the experience for victims and witnesses I fear that the restraints of austerity will make the task more difficult.

There is a new debate about our criminal justice system. This time, it is not a debate about what we want from it but, rather, what can we afford? It is a debate about how best to allocate what we now know, with absolute certainty, are limited resources. We can talk at these sort of gatherings all we want about what a successful and effective criminal justice system would look like but we need to be realistic and I am afraid that means the possibility of having to accept compromises and compromises and justice may not sit easily together.

Let me give you an example. We have recently carried out an inspection on how the CPS communicates with victims. We have not published the report yet, that will be in early January, but I can give you a general idea of one of the issues. We would all accept that it is important that victims are treated with respect by the system. We would all agree that if the CPS decides not to bring a prosecution or to accept pleas to some charges, leaving others on file or accept a plea to a lesser charge, the victim is entitled to an explanation. That generally means a letter. Letters take time and resources and the CPS has created Victim Liaison Units, essentially one for each Area, whose task it is to write to victims. The staff in these units become experienced in handling letters of this kind but there are limitations. In order to ensure consistency the staff are required to create the bulk of the letter using standard paragraphs and to use a short paragraph from the reviewing case lawyer as to the reasons behind the decision. Unfortunately, what is gained by way of efficiency loses out in empathy and any sense of a personal reply. We were repeatedly told by the people we spoke to that victims felt let down by what they see as a standard letter, without enough information to let them understand what has happened. Some of the CPS staff were themselves frustrated and welcomed talking to those victims who rang them for greater clarification. One might argue that communications that don’t succeed in explaining decisions or lack empathy or look like a standard response are unacceptable. But is the alternative achievable and is the cost to resources acceptable? The best letter, or at least the best informed, would probably be written by the case lawyer who reviewed the file and made the decisions. But asking that lawyer to draft a caring, sympathetic letter explaining in straightforward non-legal terms the reason for the decision will take considerable time. Time lost for working on cases, which in turn means delays or even cases lost.

Yes, there are things the CPS could do to improve Victim Liaison Units within existing resources but there will come the time where, you have to make difficult decisions as to how to allocate the resources you have. You might argue that if the CPS were more efficient and made better use of the resources it has then the issue would not arise. It would and it will. The CPS is stretched. It is depending on digitisation and the transforming summary justice programmes to work in order to manage within the budget it has.

So, to summarise something of a ramble, we are used to seeking the closest we can get to perfection in our criminal justice system. In future, it may be a more realistic and productive debate if we do that very British thing of making the most of what we have and ensuring that we concentrate on that crucial objective of convicting the guilty and acquitting the innocent in as speedily a process as we can achieve. That, if nothing else, is the very least a victim can expect of the system and is perhaps the most important.