Public prosecution service annual lecture - the role of the prosecutor in a modern democracy
The Director of Public Prosecutions, Keir Starmer QC, defended the Human Rights Act and emphasised the importance of the discretion and independence of prosecutors at the Public Prosecution Service Annual Lecture.
Good evening Ladies and Gentlemen, and may I at once welcome all of you this evening to the second, and to my first, annual lecture hosted by the prosecution service? It is a delight to see so many familiar faces in the audience, as well as some new ones. I look forward to meeting you all later this evening.
I am sure you will forgive me if I reflect for a moment on the fact that, in 10 days time, I shall have held the Office of Director of Public Prosecutions for exactly one year. On a number of occasions I have been asked why I applied to become Director, given my previous career at the self-employed bar. Indeed, on the occasional difficult day in the office, many of my senior staff ask me the same question, but I suspect their reason for doing so may be more pointed.
My reasons were simple.
First, it was clear to me that the CPS had built a solid platform for delivering a good and ever-improving prosecution service.
Secondly, the direction of travel which had been set for the CPS - and which it had set for itself - was, to my mind, clearly right. Continuing down that path could only lead to a more integrated public prosecution service which would be of benefit not only to the criminal justice system, but to society as a whole.
And thirdly, it was plain that the CPS was staffed by prosecutors, caseworkers and professional administrators with the highest levels of integrity who were committed to the principles of fairness, independence and objectivity - the hallmarks of a public prosecution service in which our communities may have not only confidence but also pride.
The devotion of my staff to the concept of public service is second to none. In the 12 months since my appointment, I have made 62 visits, throughout England and Wales, taking in every CPS Area and Headquarters Division and the Revenue and Customs Prosecutions Offices, and have met over 2,200 staff personally. I have seen nothing to dissuade me from my view that I am exceptionally fortunate to head this service. There can be nothing more rewarding for my staff than knowing that, often in trying circumstances, they have to take life-changing decisions according to the rule of law; tempering justice with mercy; acting out of compassion; and arriving at the right solution to the particular case in hand. I am taking the opportunity this evening to pay tribute to my staff's professionalism and to their commitment to public service.
Of course, in terms of the development of our criminal justice system within society, the public prosecutor is a relatively new interloper. I am privileged to be the 6th Director of Public Prosecutions in what I term the new era since the creation of the Crown Prosecution Service in 1986, and the 14th Director since Sir John Maule QC accepted the invitation of the then Home Secretary to become the first DPP in 1880.
Even by then, the relationship between the individual and the State as far as criminal justice is concerned was well settled. Since the 17th and 18th centuries and the days of Hobbes, Locke and Rousseau, it has generally been accepted that, for the common and collective good, individuals give up some of their personal rights in return for a criminal justice system, operated fairly under the rule of law. The will of the people, as expressed through their elected representatives, is written into the criminal law and the criminal justice system; but it remains critical that the criminal law and its enforcement continue to retain the confidence and support of the communities in whose name the law is created, applied and administered.
If those are the general principles on which our criminal justice system today is founded, we can all immediately see that the creation of a public prosecution service barely 23 years ago has come lately to well-established practices and procedures which underpin the criminal justice system.
It is therefore perhaps surprising to note that, in our short history, the prosecution service has developed, adapted and changed at the pace that we have, given the historical context of well-established criminal justice agencies alongside which we have emerged.
Of course, the most important and obvious development since 1986 was reflected in the well-chosen title taken by my predecessor, Sir Ken Macdonald, for last year's inaugural lecture - "Out of the Shadows". No longer the anonymous, desk-bound, paper-based reviewing lawyer, today's prosecutor has marched into the sunlight and the public eye.
Today's public prosecutors engage with their communities to ensure that they are informed by their concerns. They assist and advise the police and other agencies in the investigative process. They address offending and use out-of-court disposals in appropriate cases. They decide the charge in the more serious or complex cases. They take the views of victims into account in their decision-making process. They recover assets from criminals. They try to ensure that witnesses are able to give their best evidence through applying for Special Measures. They present their own cases in court. And they assist the courts in the sentencing process by identifying from the array of formal criminal justice disposals the relevant available sentences.
And the developing role of the public prosecutor is not confined to the specific activities that I have described. The merger of the Crown Prosecution Service and the Revenue and Customs Prosecutions Office that was announced by the Attorney General earlier this year is a significant step: it allows us to provide dedicated advice and support to not only the police, but also to Her Majesty's Revenue and Customs; the Serious and Organised Crime Agency; and the UK Border Agency.
And as a result, the blueprint - if ever there was one - for the Crown Prosecution Service of 1986 no longer applies.
A modern public prosecution service is emerging - a service that has at its core a commitment to protect the public by prosecuting firmly and fairly, in an open, transparent and independent way; a commitment to support victims and witnesses by enabling, encouraging and supporting their effective participation at all stages in the criminal justice process; a commitment to deliver justice in every case; and a commitment to respect and protect the human rights of all those affected by our decisions, whether they be victims, witnesses, suspects or defendants.
But in carving out these critical roles for the public prosecutor, I would be the first to accept that our development has been piecemeal. In passing, I think it would be fair for me also to comment that the public prosecutor is not alone in being the recipient of a fragmented and some might say incoherent approach to the development of criminal justice. While a piecemeal approach allows public prosecutors effectively to focus on individual developments as they arise, it restricts our ability to deliver a strategic and cohesive approach, both to the development of our Service and to the wider criminal justice system. If that is taken as a plea for a more strategic and joined-up approach to the development of the criminal justice system, so be it.
This very issue has been identified by the House of Commons Justice Committee in its report on the Crown Prosecution Service published on the 6th of August this year. There, the Committee noted that, and I quote:
"the aims and purposes of the Crown Prosecution Service need to be clear and it also needs to be clear how they relate to the overarching aims and purposes of the Criminal Justice System as a whole."
The Committee went on to say that they - and again I quote:
"fear that the Crown Prosecution Service is sometimes defined by what it is not or by its relationship to other organisations, rather than its own aims and purposes, or by clarity about its role within the criminal justice system."
As you may imagine, this rather stark analysis has caused me more than a moment's thought. Let me refine one clause in the Justice Committee's conclusions: "There is no clarity about the role of the CPS within the criminal justice system".
I accept immediately that I am polarising their observation but set against the way in which our criminal justice system has emerged over the centuries, and against the backdrop of the piecemeal development of significant parts of that system, particularly since 1986, I believe that the Justice Committee has touched upon an important issue which, in truth, gave rise to the title of my lecture this evening: the role of the prosecutor in a modern democracy.
I have set out how the prosecution service has developed and moved into the public eye. But on one level the examples I have given are simple illustrations of what prosecutors do, rather than a focused description of their overarching role. There is a difference. And so we need to look further at what is at the core of the prosecutor's critical function: the decision whether or not to prosecute.
We live in a society which places huge responsibility on those who work to deliver justice. Unlike some of our continental partners, the underpinning principle of our criminal justice system is based on one key element: the exercise of discretion. The investigator exercises discretion at every stage of the investigation: discretion to take no further action; discretion to caution; discretion to charge.
The courts exercise discretion in sentencing: a discharge or a fine; a community penalty or a term of imprisonment.
And the public prosecutor too exercises discretion - this time whether or not to authorise criminal proceedings where there is sufficient evidence to justify a prosecution.
Now let me make my position absolutely clear. The grant to, and the exercise by, the public prosecutor of discretion is essential in our system of criminal justice. Whilst it may be superficially attractive to declare that, where there is sufficient evidence, all crimes should be prosecuted, a moment's thought will demonstrate the bluntness and unfairness of such an approach.
Is it right that a 10-year-old who shoplifts a DVD for the first time under encouragement from his peers should be treated in the same way as a 25-year-old committing the same crime, but for the fifteenth occasion? Is it right that we prosecute those suffering from mental illness in the same way as we prosecute those who are not? And, more topically and more controversially, is it right that those in close personal relationships with people suffering enormous pain from terminal illnesses should be prosecuted when they assist their loved one to travel to Switzerland to end their life?
If anyone shares my view that the right response in these circumstances is likely to be different, and that prosecution is not the uniform answer to these scenarios, we are in agreement that the exercise of discretion is essential in order to secure the most appropriate outcome in any given case.
We, as a society, have rightly and loudly trumpeted our ability to temper justice with mercy and compassion, and it is through the exercise of the prosecutor's discretion that we give practical effect to this laudable objective. It provides the legitimacy for dealing with those case scenarios I have mentioned in different ways.
However, I am not under any illusion; there are risks attached to the exercise of discretion. Whilst in appropriate circumstances it can be a force for good, poorly exercised discretion can mask corruption and malevolence. Let me offer a further example: two cases of theft of a small amount of money are presented to the prosecutor. It may well be entirely correct for the prosecutor to decide to prosecute in one case but not in the other. But let us add some characteristics to our two fictional offenders. One is white; one is not. One is Christian; one is not. One is heterosexual; one is not. One is male; one is not.
It is the bad decisions which are taken on the basis of inappropriate factors - be they based on the offender, the victim, the offence, or indeed the personal views of the prosecutor - which may be hidden under the respectable cloak of discretion.
How then can the prosecutor and the system work through the potential for abuse? How can the victim of a crime, the suspect and the community in which the crime took place, have confidence that those entrusted with the heavy responsibility of exercising discretion, have only taken into account factors which legitimately fall to be considered?
The prosecutor has a substantial set of tools to assist and guide him or her in the decision-making process. Under law, I am required to issue a Code which sets out how prosecutors take their decisions. The Code contains all the phrases you would expect around impartiality, fairness, objectivity, compliance with the rule of law and respect for human rights. The Code also sets out in some detail the public interest factors that weigh in favour of and against prosecution. It is against these benchmarks that decisions to prosecute or not to prosecute can be questioned; can be challenged; and can be overturned. And a judicial process that is able to enquire into the appropriateness of the public prosecutor's decision offers a vital safeguard in ensuring that we exercise our discretion fairly, appropriately and consistently.
Let me focus on two aspects of this: human rights and the public interest. Both are currently topical and both start to explain the unique role that the public prosecutor plays in the criminal justice system.
I am frequently surprised by those who ought to know better when they come to consider the issue of human rights. Contrary to what appears to be a widely-held, but ill-informed, view, human rights do not magically appear when a suspect is stopped on the street; or is arrested; or is charged; or is prosecuted; or when they appear in court.
A brief look back into history shows that all of the defining documents recognise that human rights are universal, inalienable and perpetual. They are not triggered or defined by any one individual's status at any given time. They are not to be applied or disapplied depending on the situation one finds oneself in. And they are not discriminatory.
Our texts in this area are, of course, the Human Rights Act 1998 and the European Convention on Human Rights and Fundamental Freedoms. As I am sure we all know, Articles 2 - 12 and Article 14 of the Convention are adopted in the Human Rights Act 1998 and so have been with us for over a decade now. However, one cannot escape, particularly in recent months, the debate that has emerged around the extent to which it is appropriate - and these are my words here - to repatriate the Human Rights Act and make it "more British."
I do not think it unreasonable to conclude that those who advance such a view somehow propose to replace the Human Rights Act, or at least those articles in it which are taken from the European Convention, with other human rights which they consider to be more appropriately geared to "British" society.
Pausing only to recall the fact that the United Kingdom played a major role in the design and drafting of the European Convention itself back in 1951, let me just take you through those rights which have been adopted through the Westminster legislation.
- Everyone's right to life shall be protected by law.
- No one shall be subjected to torture or degrading treatment or punishment.
- No one shall be held in slavery.
- Everyone has the right to liberty and security of person.
- Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
- No one should be held guilty retrospectively of a criminal offence.
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- Everyone has the right to freedom of thought, conscience and religion.
- Everyone has the right to freedom of expression.
- Everyone has the right to freedom of peaceful assembly and to freedom of association.
- Men and women have the right to marry.
And Article 14:
- The enjoyment of these rights and freedoms shall be secured without discrimination on any ground.
For my part, I am proud to be part of a society that regards these rights as part of my entitlement as a member of that society. They are basic; they are fundamental; and I venture to suggest that, for the majority of us, they are so much part of our way of life that we take them for granted.
I cannot think of any way in which such basic human rights are either so foreign to England and Wales that they do not reflect those principles that we hold dear, or which for some other unspecified reason, are thought not to be relevant and of direct applicability to each and every member of our communities.
The idea that these human rights should somehow stop in the English Channel is odd and, frankly, impossible to defend.
Let me pause there simply to guard against complacency: every one of us, I am sure, knows of instances where these rights have been ignored by someone in authority; where they have been deliberately set aside ostensibly to secure some greater goal; where they have been wilfully abused in the pursuit of prejudice and discrimination. So, whilst I recognise that for most they are a part of our way of life, for others, they are vital shields and defences to the abuse, prejudice, and discrimination to which they are subjected.
If there are perceived problems with these human rights under the Human Rights Act, I venture to suggest that they are more borne out of their misapplication and misunderstanding rather than any perception that they lack intrinsic value.
And following that theme, let me dispel some myths about the Human Rights Act and the European Convention:
A police force unable to circulate a photo of a wanted, dangerous and violent criminal because it might breach his Article 8 rights to privacy? My advice - go ahead - it is essential to protect the public.
Unelected judges can now tell Parliament that their laws need not be enforced? No - judges cannot strike down legislation.
Human Rights mean that school teachers cannot enforce discipline at school? No - it is domestic legislation - section 548 of the Education Act 1996 - passed 2 years before the Human Rights Act - that banned corporal punishment in schools. Interestingly enough, it is section 93 of the Education and Inspections Act 2006 - passed 8 years after the Human Rights Act - that now allows school teachers to use reasonable force to prevent a pupil from committing an offence.
It is often in the interests of those who want to debase a principle to chip away at it by citing examples of its occasional misapplication. We should all take care to examine critically the so-called restrictions brought about by the Human Rights Act and consider where the misunderstanding truly lies before condemning a constitutional instrument that has provided legitimate comfort to so many.
But lest I stray too much from my theme, let me return to the relevance of human rights to the public prosecutor.
As you might expect, given my history, I would be the first to proclaim the human rights of suspects. For example, evidence obtained improperly in breach of Article 3 should be excluded and it is often the prosecutor who makes that call.
I understand immediately the views of others who might say that "the ends justify the means", but down that path for a civilised society operating under the rule of law lies the abandonment of the very rule itself, and the tacit acceptance of the lynch mob. If we cannot operate our system of criminal justice, other than by using the means that we deprecate in others, we have failed in our basic duty to respect that rule of law.
Identical principles apply to whether a suspect should stand trial. If we forsake the fairness of the trial process, simply on the premise that "a crime was committed, so someone must be held responsible", we lose all notion of justice and surrender to the sometimes understandable but always inappropriate yearning solely for retribution. Our criminal justice system is better than that, and so are the people who work within it.
If those are some of the rights that attach to the suspect of a crime, let me instantly redress the balance and lay bare the lie that suggests that the Human Rights Act is a "Criminals' Charter".
Human rights do not mysteriously disappear if one is a victim of a crime. Human rights do not recognise any form of boundary and it is wrong in principle to regard the acquisition of a set of basic and inalienable rights as dependent on a particular status that any one individual has, at any given time. There is much to commend the assertion that such rights are universal.
Now many of the fundamental rights that attach to a suspect - the right to a fair trial; the right not to suffer degrading treatment - are clear and directly applicable. The rights of victims are more subtle, but no less fundamental for that.
So, for example, the Human Rights Act recognises a positive obligation on the state to have effective mechanisms in place to protect the lives of those within its borders from the criminal acts of others. This places the police under a positive duty to take reasonable steps to protect potential victims from a real and immediate risk to their lives from criminal activity. So if this is designed to prevent victims from becoming so, when they do unfortunately acquire that status, they also have the right to an effective investigation. These are rights that spring from the Human Rights Act, not rights that somehow conflict with it. And, critically, they are now enforceable in court.
And, in addition, it is clear now, and in a way that was less certain 10 years ago, that victims have the right to challenge decisions not to prosecute, particularly where they can point to poor decision-making or the inappropriate consideration of irrelevant factors in that process.
Again, let me make my position clear. I welcome judicial oversight of the decisions of public prosecutors. Given the role that we play and the often life-changing impact of the decisions that we take, it is entirely appropriate for perceived poor decisions to be challenged. If they are wrong, they should be corrected. For my part, I welcome the developing jurisprudence in the Administrative Court.
There, the court is clearly prepared not only to look at the decision-making process itself, but also to take a robust approach to the interaction between overturning a decision not to prosecute - and by implication inviting the prosecution to reconsider its position - and any subsequent abuse of process argument that may be mounted by the aggrieved defendant who thought he was originally to be let off the hook.
This comprehensive approach to recognising that our principal aim must be to arrive at the right answer means that victims have even greater protection afforded to them against the - dare I say - occasional error in the decision-making process. But it cannot serve any purpose whatsoever if the courts give with one hand, and require the prosecutor to reconsider a wrong decision not to prosecute, and then take with the other, by upholding any subsequent abuse of process argument that the defendant runs before trial. I am pleased that, in recent cases, the courts have considered the issues in the round in order to deliver justice, rather than adopt an intellectual and perhaps sterile approach which might have left the victim celebrating a Pyrrhic victory.
And victims have rights throughout the trial process. Let me offer two examples: the victim, or in appropriate cases the victim's family, has the right to express their views about whether a prosecution should take place. This is enshrined in the Code for Prosecutors. However, this is a good example of the delicate balance that public prosecutors have to achieve. For all the reasons that have been rehearsed over the years, the public prosecutor is not the victim's prosecutor, and for good reason: the allegiance of the public prosecutor is to justice itself - and that necessarily means justice to both sides.
I recognise that this can often be a source of tension, with victims looking at the defence lawyers and seeing a team dedicated to a single purpose - the acquittal of the accused. But our relationship with victims is clear and needs to be clearly stated: while we are not the victim's prosecutor, it is our duty to enable, encourage and support the effective participation of victims and witnesses at all stages in the criminal justice process.
Perhaps there is more that we could do to demonstrate that we stand up for victims, but we are making progress: pre-trial interviews with witnesses are one example.
But if we are to undertake our role fully and properly, we need to recognise that justice is on the side of the right, not on the side of any one party that comes seeking it.
Nonetheless, when the decision to prosecute is taken, victims and witnesses are entitled to have the public prosecutor conduct the case firmly, passionately, persuasively and with the highest level of commitment.
This involves ensuring, to the extent that it is possible, that witnesses are put at their ease during the trial process. But more than that, the courts have declared that the public prosecution service, as a public authority, is under an obligation to enquire into the risk facing a witness and to consider what steps are available to protect the witness from that risk. The advent of special measures has done much to help witnesses to give their best evidence. Although there is always more to do, I am pleased to note that in 2008 the prosecution made over 30,000 applications for special measures and that over 28,000 were granted.
If anything, these figures tell me that we ought to reconsider the title of the measures concerned. They are no longer special. The granting of such measures in such numbers has been clearly shown not to weaken the quality of any ensuing conviction. And in the balance that is the criminal trial process, perhaps the time has come to recognise the extent of the harrowing experience that many witnesses go through when undertaking their civic duty to attend court and give evidence. In an adversarial trial process, based predominantly still on the principle of a trial listening to oral evidence, the least the system can do is to provide an environment which allows witnesses to give their best evidence. If that entails measures to help them to give their evidence, I for one am all in favour.
And if one wanted only one single example of how the public prosecutor has stood up for, and defended, the rights of victims in this area, one need look no further than the emergency legislation that became the Criminal Evidence (Witness Anonymity) Act 2008.
There, the common law failed the victims of serious crime by depriving them of what was thought to be their common law right to witness anonymity in very special and limited circumstances. The case of Davis in 2008 marked the end of the common law development in this area.
While we may all decry the need for such extreme protective measures, the harsh reality of modern day serious crime is that, unless witnesses to those crimes are assured that their lives will be protected, they will simply and understandably not come forward to help the prosecution.
The passing of that 2008 Act marked something special. It marked the moment when the prosecution service came of age in the legislative process. Not only were our concerns listened to by the Government, but it immediately placed an Emergency Bill before Parliament which enacted it within 30 days of the House of Lords' decision. And so, within the shortest possible time, the failure of the common law to recognise and protect the human rights of victims was met with a positive and practical response which, when applied appropriately, would, in my judgment, be recognised as the only reasonable and sensible conclusion in order to secure the delivery of justice in certain cases.
But this is not the only time the prosecution service has forced the pace of change. It was the CPS which decided to seek to overturn the then common law principle that rape within marriage was not a criminal offence. Although that position had been slowly eroded through developments in the common law, it took the CPS in the landmark case of R v R in 1991 to go before the then final appellate court in England and Wales, the House of Lords, and argue that centuries of tradition which had been started by Hale in 1736 should be overturned.
On that occasion, the common law stepped up to the mark and swept away centuries of tradition.
My point is twofold: firstly, the common law sometimes struggles with a coherent approach to human rights, and so the Human Rights Act is an essential component of the framework within which everyone's rights may be protected.
Secondly, be in no doubt that the prosecution service adheres scrupulously to the protection of everyone's human rights. To claim otherwise or for others to claim that the system itself fails in terms of supporting everyone's human rights is to deny the absolute dedication of all those involved in the administration of the criminal justice system, and particularly public prosecutors who strive every day to ensure that, in the investigative and trial process, the human rights of victims, witnesses and defendants are fully observed.
And let me add this. Human rights do not mysteriously disappear when the state itself takes action. Members of the Legislature and members of the Executive are as likely to be held to account for their actions as anyone else. There is no special rule that Members of Parliament are exempt from the operation of the criminal law. And there is no special rule that the Government itself stands beyond the reach of the criminal law.
Judges take an Oath to act without fear or favour. Public prosecutors act in an identical manner and, given our gatekeeper role, perhaps it is even more important that those principles are recognised and accepted as part of the prosecutor's legitimate role.
So where does that leave us? I have set out clearly, I hope, the relevance of human rights across the board: they are not the preserve of the suspect; the defendant; the victim; or the state. They are the entitlement of everyone who comes within the jurisdiction and the prosecution service plays a vital role in ensuring that they are equally applied.
And so I find myself in difficulty when I hear talk of the need to "re-engineer" or "re-balance" the criminal justice system. Such talk usually emerges after a particularly questionable decision which receives undue notoriety, often elevated into the public eye, by those who want to use the example to support their views of the ineffectiveness of the legislation. Usually this has a thread back to the Human Rights Act and we can all picture the banner headlines in the press, each part of which lays claim to the exclusive story of how a victim's rights have been trampled on by the almost Orwellian spectre of European-inspired legislation.
But such loud headlines obscure the truth. Most victims want to be treated with dignity and respect - and rightly so. They want to be kept informed and supported as their case progresses - and rightly so. They want to be able to give their best evidence - and rightly so. But very few victims argue that these perfectly legitimate aims should be achieved by stripping basic fair trial rights from the accused. That would do nothing to promote the dignity and respect of victims.
And it would be to this country's shame if we lost the clear and basic statement of our citizens' human rights provided by the Human Rights Act on the basis of a fundamentally flawed analysis of their origin and relevance to our society.
I have, I hope, identified the crucial importance then of human rights to the prosecutor in the exercise of their discretion and in the undertaking of their role as cases progress through the criminal justice system.
The second feature that is unique to the public prosecutor is the requirement to consider whether a prosecution is needed in the public interest. I imagine that the Code for Crown Prosecutors is well-known to most of you here this evening. It is the embodiment of the discretionary decision-making process. In it are the principles and factors which guide public prosecutors towards the appropriate decision in those factual circumstances which I set out earlier and in all the other cases that they consider.
Support for the exercise of discretion based on these factors comes from the often-quoted statement by the then Attorney General and himself a former prosecutor, Sir Hartley Shawcross. Speaking in Parliament in 1951, he set out the overarching principle that has guided public prosecutors for decades since, in three typically forthright passages:
"It has never been the rule in this country - I hope it never will be - that suspected criminal offences must automatically be the subject of prosecution."
"[T]here is no greater nonsense talked about the Attorney-General's duty than the suggestion that in all cases the Attorney-General ought to decide to prosecute merely because he thinks there is what the lawyers call 'a case.' It is not true, and no one who has held that office supposes it is."
"It is not always in the public interest to go through the whole process of the criminal law if, at the end of the day, perhaps because of mitigating circumstances, perhaps because of what the defendant has already suffered, only a nominal penalty is likely to be imposed. And almost every day in particular cases, and where guilt has been admitted, I decide that the interests of public justice will be sufficiently served not by prosecuting, but perhaps by causing a warning to be administered instead."
I can do no better than adopt every word that the then Attorney said and I trust that those who might advocate a tightening of the discretion around the public interest will consider carefully his words before taking any action which in reality might lead to injustice. The blunt instruments, that criminal law statutes necessarily have to be, are honed into compassionate and appropriate casework decisions by the exercise of the public interest discretion. More forcefully put perhaps, a recent well-respected legal commentator said:
"critics have to understand that primary legislation cannot cope with the subtle variables of human behaviour".
In this way, the essential link that preserves the contract between society and the enforcement of the criminal law is flexible enough to allow firm and rigorous prosecutions when necessary, and acts of compassion and mercy when appropriate.
Now, of course, the challenge for the public prosecutor, just as it is a challenge for our lawmakers, is to ensure that, even within that flexible structure, the expression of the public interest remains in keeping and in touch with prevailing social trends and views.
Given the fundamental premise on which our criminal justice system is constructed, it is vital that the public interest factors defined in the Code keep in step with the prevailing attitudes of our society.
There are many examples from the last 50 years of criminal justice which demonstrate how the law itself adapts to developing social trends. Society's attitude towards drink driving is generally regarded now as being far less tolerant than perhaps 30 years ago. The public's attitude to offences of domestic violence and rape are far clearer now than they were 30 years ago. In part, this is as a result of society's recognition that an individual's human rights are not lost on signing the marriage register and they certainly do not stop at the bumper of a car driven by a drunk driver.
Adapting the public interest factors so that they continue to reflect current social attitudes is not a precise science. Indeed, the articulation of the public interest itself is never going to be anything other than an art-form, defying any formal or comprehensive description. The key to maintaining public confidence is to ensure that those factors which are identified as relevant to the decision-making process are broadly accepted as reasonable by the vast majority of the communities whom the justice system serves.
This is why my predecessors and I have adopted a policy of regularly reviewing the Code to ensure that it remains relevant to, and informed by, today's social attitudes. There will always be a period of time between the emerging social position and our ability to reflect it in the public interest factors in the Code, but one of the huge strengths of the Code is that it can be amended swiftly. Indeed, I have embarked this week on a public consultation exercise which will lead to the sixth edition of the Code since 1986. In the space of 23 years, successive Directors have taken the view that, in order to keep the service's decision-making processes up-to-date and in line with the demands of the communities which the service represents, it has been appropriate to amend its most fundamental document.
I agree: there is nothing more important than to ensure that the way we take our decisions and the factors we take into account have the support of the communities we serve.
This neatly leads me to a current topical issue. Assisted Suicide poses questions for our elected legislature with which I do not have any wish whatsoever to interfere. Whether Parliament takes the opportunity to look again at section 2 of the Suicide Act 1961 is a matter entirely for its Members.
I, on the other hand, have been placed under a duty to satisfy a direction handed down in the last case ever heard in the Appellate Committee of the House of Lords: to devise an offence-specific, interim policy, setting out the public interest factors which I shall take into account in deciding whether or not a prosecution is needed in the public interest in cases of assisted suicide. I have complied with that direction and published my interim policy in cases of Assisted Suicide.
I have sought the public's views on that interim policy.
In many ways, that process epitomises the contract which underpins the successful application of the criminal law in England and Wales. That system relies upon the consent of the individual, and the public consultation exercise I have launched is, to my mind, a paradigm of the way the system should work. I very much look forward to the results of that exercise to see how many of the public wish to play a role in helping me to ensure that our decision-making process is kept in line with their views.
So again I ask: where then does this leave us? The discretion which the prosecutor exercises is widespread and its application is guided by the signposts provided in the Human Rights Act and the public interest factors set out in the Code. But these will amount to nothing without one other vital component: independence.
Factors can be manipulated; even basic principles can be ignored. The key to ensuring this does not happen lies in the position that the public prosecutor holds in our society.
It is not an accident that I, as Director of Public Prosecutions, am separated from Government through the device of superintendence. Ever since the infamous Campbell case in 1924, the right of the Law Officers of the Crown and the DPP to reach their decisions without political interference has been held as inviolate. The Prime Minister's confirmation of the Attorney General's decision to recuse herself from casework decisions unless they impact upon national security or where she is required to act by law, and the Protocol that I and others signed with the Attorney General in July of this year, both set out publicly for the first time the independence of the public prosecutor to take decisions in individual cases.
No Government may instruct me as to what to do: neither, by the same token, can any member of the public. The public prosecutor's sole responsibility is to see justice done and it is this element of impartiality; of independence; of non-alignment with any vested interest; that provides the public prosecutor with the strength to take difficult decisions.
As DPP, I exercise my functions subject only to the superintendence of the Attorney General, who is, in turn, accountable to Parliament for the prosecution services. Beyond that, I readily accept and embrace the obligations on public prosecutors to stand accountable for their independent decisions.
I am conscious that I am in danger of exhausting time and trespassing onto eternity. In thanking you for your attention, let me say this. In a dynamic and responsive criminal justice system, there must always be room for change and development. I have set out this evening some of the many ways in which the criminal justice system has evolved and how I want the prosecution service to continue to grow.
In my first year as Director, I have considered carefully the steps I want to take to bring about this development. I know many of you will be familiar with the document "Setting the Standard" that I published in July. There, I said that I wanted to "start the discussion about how we are all going to deliver criminal justice of the highest quality so that we inspire confidence and trust in our communities". Just as that document was designed to be part of that wider debate, so is this address this evening.
The Chinese proverb of: "may you live in interesting times" applies as much today as ever. The establishment of the Supreme Court from the 1st of October - barely 20 days ago - presents at least the possibility that we may see a move in time towards perhaps a constitutional court with which other jurisdictions are not only familiar but comfortable.
Standing alongside the judicial system will be the public prosecutor, acting without fear or favour; resolute; resolved to act under the rule of law; a fierce defender of his or her discretion; and a guardian of the human rights of all those who come into contact with the criminal justice system.
There is plenty of room on the platform on which we stand, and I invite all those who share our values of fairness and compassion to join us.
So, to the challenge posed by the Justice Committee: the absence of clarity about the public prosecutor's role in our society - a modern democracy - I reply in this way.
It is the public prosecutor's role to:
- Protect the public;
- Support victims and witnesses; and
- Deliver justice;
- all within the context of the rule of law, and the framework of a human rights-based criminal justice system.
Clear and to the point; understandable and deliverable.
And in a phrase with which the Members of the Justice Committee will be familiar: I commend that reply to the House in which they sit, and I commend it to all of you in this House this evening.
Keir Starmer QC