CPS Lecture - Coming Out Of The Shadows
A call for level headedness and legislative restraint in an age of danger and risk was made by the Director of Public Prosecutions, Sir Ken Macdonald QC in the inaugural CPS Lecture, the full transcript of which is available on this website.
Sir Ken Macdonald, QC, Director of Public Prosecutions
Twenty two years is not a terribly long time in the history of a national institution. But twenty two years is all the history that the Crown Prosecution Service has.
We were set up in 1986. And we were to general agreement an unhappy compromise between numbers of strongly competing interests.
Let me, in my final public speech as DPP, repeat my call for level headedness and for legislative restraint in an age of very dangerous movements. We need to take very great care not to fall into a way of life in which freedoms back is broken by the relentless pressure of a security State.
On the one hand there were those who felt that it was quite untenable for England and Wales to remain any longer the only fair trial jurisdiction in the world bar New Zealand to lack an independent national body, outside the police, tasked with prosecuting crime.
They pointed to serious miscarriages of justice which seemed to result from the joint responsibility which our police had traditionally borne for investigation and prosecution alike.
They believed that a prosecution process which lacked independent prosecutors was not safe.
On the other side there were powerful interests within the police and the legal profession that were adamantly opposed to the whole notion of a strong new State prosecution service.
For the police, it would mean a troubling loss of control- not only over what went into court, but also, to an extent, over the shape of the cases that made it there.
So far as sections of the legal profession were concerned, there were a number of risks, all equally unattractive.
Firstly, a national body would be powerful.
It would become, at a stroke, the single largest provider of State funded work to the private Bar, by a mile.
Secondly, in those days most magistrates' court advocacy was conducted by novice barristers cutting their teeth. There was a real danger that the new CPS would start to do much of this for itself, and to a higher standard.
Thirdly, there was a more principled point. This was that a supposed constitutional safeguard would be lost.
Namely that the independence of private counsel as prosecutor would be replaced by his rubber-stamping competitor, a compromised State-salaried advocate.
But the way the wind was blowing back in the mid 1980's was best epitomised by a remark made on the floor of the House of Commons, during the passage of the Prosecution of Offences Act.
The soon-to-be-created Crown Prosecution Service, it was said, would concentrate on 'low grade legal work'.
Accordingly the settlement was this: the new authority would function in a way that minimised any risk to the interests ranged against it.
Essentially, our lawyers would receive files of cases investigated and charged, at their discretion, by the police.
If they passed a test for continued prosecution these cases would, more often than not, be passed over to a barrister in private practice for presentation in court.
We would create a national prosecuting authority. But not very much would change as a result. Its birth would not herald any wider reform of the system.
This was a significant defeat for those who wanted the new Service to have the right funding and the right powers to exercise its appropriate role as gatekeeper, advocate and guarantor of fairness in the business of prosecuting crime.
Instead the early years of the CPS were to be characterised by underfunding, low confidence and poor public regard.
There were important and damaging tensions with the police, which the CPS played out from a position of great weakness. The Service had real difficulty recruiting and retaining talented legal staff.
It was a failing organisation and those in government who made the early compromises bore most of the responsibility.
There have, I think been three important stages in a process of re-invention.
The first came in the late 1990's when the present government, as it increased funding in other public services, increased ours as well. This had an immediate impact.
Amongst other things, we were able to pay higher salaries. We began to compete more aggressively in the market for lawyers.
Around the same time, in 1998, and in the face of much opposition from the Bar in the House of Lords, CPS advocates were granted by statute rights of audience in the higher courts.
In time this became a development of enormous significance.
Finally, around this time our very role was revisited by statute. This was due in large part to Sir Robin Auld and to the then Attorney-General Peter Goldsmith.
In 2000 Lord Justice Auld had been commissioned by the government to conduct a Review of the criminal courts in England and Wales.
The government was dissatisfied with what it saw as the inefficiency of the criminal court system.
It believed that vested professional interests were blocking reform, just as perhaps they were in the other great public services.
Bluntly, not enough cases were being brought to justice. There was unacceptable attrition and those proceedings that ran to a conclusion took far too long in getting there.
Sir Robin's proposals were radical. Some of them, to the regret of many, were not implemented. But others designed to encourage joint working between criminal justice sectors were taken up.
The Criminal Procedure Rule Committee, the National Criminal Justice Board, and the Local Criminal Justice Boards are just some of the testaments to the wisdom of this astute and cerebral jurist.
But there was more. For deep in his Review, in Chapter 10, lay these words:
A strong and independent prosecutor
The Crown Prosecution Service has still to fill its proper role which, in my view, should be closer to the more highly regarded Procurator Fiscal in Scotland....... The prosecutor should take control of cases at the charge or, where appropriate, pre-charge, stage, fix on the right charges from the start and keep to them, assume a more direct role than at present on disclosure and develop a more proactive role in shaping the case for trial, communicating appropriately and promptly with all concerned. For all this the Service needs greater legal powers, in particular the power to determine the initial charge, and considerably more resources, in particular trained staff and information technology, than it has had in the first fifteen years of its life
152. The Crown Prosecution Service should be given greater legal powers, in particular the power to determine the initial charge, and sufficient resources to enable it to take full and effective control of cases from the charge or pre-charge stage, as appropriate.
Now this was, I think, unexpected- not least by the CPS itself. It was also revolutionary. For Sir Robin's proposal would, in its implications, revisit the settlement reached way back in 1986.
It had the potential to recast the CPS in the model contended for by the early defeated proponents of an empowered authority, and to rebuild the architecture of criminal justice. A 'strong and independent prosecutor' might begin to gestate.
Sir Robin Auld certainly understood this. So did Peter Goldsmith. He lost no time in persuading his government colleague, David Blunkett, then a forceful and powerful Home Secretary with responsibility for and a close relationship with the police, that the Auld recommendation should be accepted.
Relations with the police
In 2003, the Criminal Justice Act transferred the critical power to determine criminal charges in all but the most minor cases from the police to the prosecutors of the CPS.
By early 2006, prosecutor charging had been implemented across the country. We had, finally, become the gatekeepers to the criminal courts.
As an immediate result fewer cases were collapsing before trial, down from 36% to 13%. Guilty pleas shot up by 30%. And convictions rose. The system had become more successful at balancing the rights of defendants with the interests of victims.
Decisions about which cases to prosecute need to be sound. This is an important responsibility for the State. It must have in place sound processes guaranteeing fair investigations and sound charging decisions. This is an integral part of justice.
Our role in charging makes it more likely that investigations will comply with the rules and that occasional abuses of police power will be avoided.
We make it substantially less likely that the State will bring cases which shouldn't be brought and which are not justified by the evidence. Consequently we increase efficiency and we are a bulwark against miscarriages of justice.
But institutional memories can be very short.
In recent months, we have heard calls for a return to police charging. It is said that the prosecutor's role in this process increases the burdens of bureaucracy for the police.
But the gathering of evidence to bring home fair prosecutions is not an exercise in bureaucracy. It is not paperwork. It is part of the vital process of obtaining justice for the victims of crime.
The police's role in criminal justice is not discharged simply by taking people off the streets and processing them blindly through some convenient but inept allegation to inevitable case dismissal.
If we move backwards and return charging to the police we shall see the consequences daily in our courts.
Short institutional memories usually lead to bad policy and I urge Parliamentarians to exercise real caution here.
A key reason for building the prosecuting authority into a major national institution is to develop a voice wedded to the rule of law and proud to champion it in public debate.
Accountable, through the Attorney-General to Parliament, but not subject to government direction. Entirely free from political pressure and not scared to show it.
And this has been the second stage in the modern re-invention of the CPS.
Of course the traditional view was that prosecutors should do their work in silence. Complete silence. The silence of the grave.
In the Irish Republic, prosecutors still decline, without exception, to explain their decisions. They will not explain a refusal to prosecute a driver who has killed a small child- not even to the child's parents.
We used to take the same view. Thankfully since 2001, under my distinguished predecessor David Calvert-Smith, we have been routinely communicating with victims. We have been explaining our decisions and our reasoning to them.
But taking office I believed that we needed to communicate much more widely than this, and much more deeply with the public in its broadest sense.
We needed, as the title would have it, to come out of the shadows.
At one time, communicating in any way at all with media organisations would have been seen as an unpardonable indiscretion. I know some people still see it that way today.
But I have deliberately driven the CPS in this direction. Partly because I believed the relationship between the media and criminal justice to be completely dysfunctional.
It seemed to me that chronic mistrust on both sides was actually obscuring the truth. It was preventing understanding and it was helping to contribute to the fear of crime.
The media, of course, can strongly influence peoples' perceptions of the world around them. Sometimes it can even persuade them not to believe the evidence of their own eyes.
But I also had a strong sense, I confess, of the public's simple right to know. I believed we should start telling them about our work.
So we did. We started providing the press with advance briefings about our more significant trials. We began announcing charging decisions in press conferences, often live on television.
In some cases we would put out statements explaining our decisions in detail. At the conclusion of trials, our prosecutors would make statements on the steps of the courts.
Across the country, Chief Crown Prosecutors began to give interviews. One even had a phone-in programme on a local radio station.
In 2005, we went further and decided to sign a Protocol with media organisations, to liberalise the release of prosecution material relied upon in court.
This was part of an absolutely deliberate strategy. We wanted the public to see our cases for themselves.
Again, this caused unease. I know very well that in some quarters it still does.
But if the public prosecuting authority, in all the solemnity of a criminal trial, has placed a map, a photograph, a piece of film before the jury, how could we say that the wider public should not be trusted to see it for themselves?
This is why, so often now, trial reports are accompanied by CCTV footage, video material and the rest. We take it for granted that we should be able to watch so-called martyrdom videos on the evening news.
But it is obvious that there is another, much more sensitive side to the prosecuting authority acquiring its voice.
Put simply, when the prosecuting authority exercises its vocal chords, it is axiomatic that it must be telling the truth.
This is a critical foundation of public trust.
And this leads to a conclusion which can also be controversial in some quarters: prosecutors must be wary of political rhetoric that cannot deliver. More than that, they must have the confidence to say no to it.
Let me give you a simple example.
I had only been in office a few weeks when, in early 2004, the then Prime Minister and the then Home Secretary suggested publicly, and on the same day, that in serious crime cases the criminal standard of proof should be lowered.
Now this proposal was challenging on many fronts.
Firstly because it appeared to conflict rather crudely with our international obligations, being notably inconsistent with Article 6 of the European Convention on Human Rights - which deals with the presumption of innocence.
Secondly, because it appeared to conflict equally crudely with our common law norms and with learning on the civil standard of proof in cases of particular import to individuals whose reputational rights are engaged by the issues in question.
Thirdly because it would inevitably mean sending men and women to prison for perhaps many years- in the face of reasonable doubts about their guilt.
So it seemed inescapable that I should, as head of the prosecuting authority, express strong public disagreement with this proposal- and I did so.
It is certainly difficult to imagine, and I do not believe a senior government figure would make, such a proposal today. We have clearly moved on.
But let me give you a slightly trickier example.
It is often said that the government's desire is 'to re-balance the criminal justice system so as to put victims at its centre'.
Now these are obviously appealing words and all of us can identify with them. I myself have often spoken about the appalling history of our treatment of the victims of crime in criminal justice.
No one wants to be a victim of crime. Not many people would wish to witness a crime. Very few relish coming to court. For most that do it's an unsatisfactory experience. It always will be.
So it is obviously important for us to do everything we can, consistent with fairness to all parties, to make things as bearable as possible for those who become caught up in the processes of criminal justice. To treat them in a civilised way.
Yet we all know that what is really at the centre of criminal justice is fairness.
Naturally this means respecting the rights of all parties. Of course the government is absolutely right to stress this and is to be commended for doing so.
All parties to the criminal process do have rights, including Convention rights that need to be upheld.
But it will never be possible, in adversarial proceedings governed appropriately by Article 6, for the interests of victims to overcome those of defendants.
Rhetoric which suggests that this can be achieved will never deliver. It misleads and prosecutors should stay away from it.
One final example.
Prosecutors should never raise expectations and they should always be clear about the limitations of legislation.
In late 2007, Parliament passed a statute to outlaw the stirring up of religious hatred. This statute was apparently conceived in an attempt to plug a perceived gap.
Muslims, not being legally defined for very obvious reasons as a racial group, were thought to be left unprotected by the offence of inciting racial hatred. Unlike, for example, Jewish people.
There was a vociferous campaign around this issue and the government decided, understandably, to act.
But we know that the new offence, as drafted, as passed, barely offers any protection beyond the protection afforded by other pre-existing laws. This is because Parliament didn't like the original proposals.
Parliament could understand a law protecting peoples' racial identity from the effects of hatred.
It couldn't understand a law protecting peoples' chosen ideas from the effects of hatred.
Parliament didn't like people being hated, but it didn't so much mind ideas being hated. No doubt many of us can understand this.
The result was a series of amendments which meant that in order to prosecute, we would need evidence of deliberately threatening behaviour deliberately intended to stir up hatred to a high degree, and recklessness and even the deliberate stirring up of ridicule, hostility and contempt were excluded. Consistent with the law, you remained perfectly free to insult any religion in this country.
Indeed it became difficult to imagine acts passing such a high threshold that would not amount equally to some other more serious pre-existing offences that would obviously be charged in their own right.
Now we took a deliberate decision to be very clear about this with Muslim communities. My sense is that our candour has been appreciated. If we had remained silent I believe confidence would have collapsed.
So in all these areas, I believe, the developing voice of the prosecuting authority has been beneficial. It has provided a re-balancing in the debates that have raged.
In the case of 42 days, I think it provided an essential practitioner element, beyond political calculation, and of fundamental assistance to Parliament in coming to its important conclusions.
Let me turn to the third and I think important stage in our re-invention. Our resolute move into higher court advocacy, which I know has caused concern.
Here I stand in the Hall of the Inner Temple, where I was called to the Bar exactly thirty years ago.
I am a barrister. I practiced at the Bar for 25 years before I became DPP. My successor is a barrister. I remain a barrister and I shall return to practice when my appointment concludes in a week or so.
The Bar is a great profession. It includes, of course, both the self-employed and the employed as absolutely equal parties.
We in the CPS employ hundreds of barristers. They are amongst our most able people. I expect their number to grow as we continue to provide more opportunities in advocacy.
Advocacy changes everything for us. It enables us to grow up. To become at last a body of prosecuting advocates. I rather doubt that the broader significance of this is yet fully understood.
Its effect on our ability to charge well and accurately. Its impact on our case-building skills.
The way it underlines our responsibility for everything we do and develops lines of accountability. The visibility it provides.
The growth in confidence and stature.
This year a survey of law undergraduates by the Lawyer magazine placed us fourth in a poll of places the students most wanted to work. This would have been inconceivable a few short years ago. We were behind the UN, the World Court and Amnesty International and were the first law firm people turned to as a prospective employer.
2,500 applications for 25 places on our new national legal trainee scheme.
Who would have believed that?
Almost everyone now joining us cites advocacy as the reason. It is no surprise to us that the quality of our recruits is higher than it has ever been.
But the Bar should not see changing patterns in legal careers as a threat. It's better to seize the changes and to take advantage of them as career paths become more diverse. There is a vast amount of publicly funded work in our criminal courts.
Plenty for all people of real ability. No doubt in future people will move backwards and forwards between us and the Bar.
And no doubt the admired model of the self-employed barrister will continue to thrive, so long as there are men and women of talent and commitment who wish to pursue it. I have no doubt there will be.
As I near my conclusion, let me, in my final public speech as DPP, repeat my call for level headedness and for legislative restraint in an age of very dangerous movements.
We need to take very great care not to fall into a way of life in which freedom's back is broken by the relentless pressure of a security State.
Over the last thirty years technology has given each of us, as individual citizens, enormous gifts of access to information and knowledge. Sometimes it seems as if everything in the world is at our fingertips and this doubtless has made our lives immeasurably richer.
But technology also gives the State enormous powers of access to knowledge and information about each one of us. And the ability to collect and store it at will. Every second of every day, in everything we do.
Of course modern technology is of critical importance to the struggle against serious crime and, used wisely, it can and will protect us.
But we need to understand that it is in the nature of State power that decisions taken in the next few months and years about how the State may use these powers, and to what extent, are likely to be irreversible. They will be with us forever. And they in turn will be built upon.
So we should take very great care to imagine the world we are creating before we build it. We might end up living with something we can't bear.
Of course our country faces very significant risks.
And I have enormous admiration for all those in the police and in the security and intelligence services who work with such energy and verve to combat those risks.
The prosecutors in my Counter Terrorism Division have similarly distinguished themselves time and again since we set it up it three years ago.
I've not forgotten, indeed it is salutary to remember, that when I took up my appointment five years ago, some people questioned my suitability on the grounds that I had, in my career at the Bar, defended terrorists of almost every hue.
Of course I was not ashamed of this. Indeed I was very proud of it. Defence lawyers must never judge their clients and there is no hierarchy of righteousness in criminal advocacy.
But I made clear, nevertheless, that my period as Director of Public Prosecutions would be accompanied by a relentless prosecutorial struggle against terrorism. And so it has been.
From the start that struggle has been absolutely grounded in due process and pursued with full respect for our historical norms and for our liberal constitution. We have not feared fairness.
We all know that this has worked. Our conviction rate is in excess of 90%- unmatched in the fair trial world. We have a guilty plea rate of over 40%.
So we have been absolutely right to resist, whenever they have been suggested, special courts, vetted judges and all the other paraphernalia of paranoia.
Of course, you can have the Guantanamo model.
You can have the model which says that we cannot afford to give people their rights, that rights are too expensive because of the nature of the threats we are facing.
Or you can say, as I prefer to, that our rights are priceless. That the best way to face down those threats is to strengthen our institutions rather than to degrade them.
It is difficult to see who will maintain a cool head if governments don't. Or who will protect our Constitution if governments unwittingly disarm it.
The response to terror is multi-layered. It has to be that way.
In some contexts it is dealt with geopolitically, by engaging relations between sovereign states.
In others it is disrupted by intelligence and by other interventions. In still others the response must plainly be military.
But on the streets of our country, violent law breaking is dealt with as crime. It is taken through the courts as crime and it is confronted with in accordance with our Constitution.
In all the debates that have raged back and forth, Britain has been absolutely right, and our government has been absolutely right, to hold fast to this course.
We would do well not to insult ourselves and all of our institutions and our processes of law in the face of these medieval delusions.
As I say, the response to terror is multi-layered. But it should not include surrender.
What of the future of the CPS? I believe it is bright. We are growing in influence and stature.
And we are the most diverse legal organisation in the country, at all levels.
Around 14% of our staff comes from Black and Minority Ethnic backgrounds. The percentage is the same amongst our highest rank, our Chief Crown Prosecutors. This is one of our greatest strengths, unprecedented in any other organisation of our kind.
And it can become one of criminal justice's greatest strengths.
But only if other agencies and other institutions move resolutely in the same direction and allow their stubborn snowy peaks to be conquered by people of ability from all communities.
We have shown that this can be done- and what reservoirs of talent can be released when the dam breaks.
So what is the final reform for us?
I state it very simply: allow our people to aspire to become judges, like their prosecutor colleagues in every other fair trial jurisdiction in the world.
We have people of enormous talent and flair, from every race and from every background.
But so long as the only route to the circuit bench is through Recordership, from which we as State prosecutors are barred, all this judicial potential is lost to the public.
So is the potential of many others who cannot qualify through this unnecessary and outdated straitjacket.
Much has been said about the value of a diverse judiciary. There have been advances, but progress is slow.
It will remain that way so long as the exclusive route to appointment is largely accessible only to a small and frankly not very diverse pool, and I can say this because I used to be at the Bar myself: barristers in early middle age in private practice.
I have no doubt that opening the bench up more radically will require alternative and much broader schemes of selection.
We need to choose from much deeper pools of talent. More solicitors, more employed lawyers, more academics.
And, I hope, some prosecutors too.
None of this should be beyond our wit to devise. As an actual fact, glass ceilings are quite easily shattered where the will is present.
We have the will. The question is, who else does?
I wish my successor Keir Starmer great success in this and in everything else over the next five years.
Ken Macdonald QC