The new challenges to organised crime prosecution

This is the text of a speech given in May 2011 by Alun Milford, Head of the Organised Crime Division, to a conference on Organised Crime in May 2011

The context

Any review of challenges to the prosecution of organised crime must start with an acknowledgement of the new world we inhabit since the Spending Review came into effect. Like the rest of the public sector, over the next four years we will have to absorb significant cuts in our funding. In our case, we will see our budget reduced by 24 per cent over that period. Our first challenge, for organised crime prosecutors as much as any other prosecutor, is to find new ways of working, and of doing so without compromising the delivery of justice.

The CPS for some time has been preparing for the Spending Review 2010 outcome. First, we needed to be clear about the service we needed to deliver and the standard of delivery we had to ensure. Through our pivotal role in the criminal justice process, we have to protect the public. We must respect and protect the rights of victims and witnesses. And we also have to deliver justice; the right people have to take the right decisions at the right time. Where we prosecute, we have to ensure the fairness of the trials we conduct. No improvements in effectiveness or efficiency can come at a price that compromises that principle. We set out how we put these tenets into practice in our Core Quality Standards document. It sets out the levels of service we will deliver in our casework. So, standard 1 covers advice to the police, standard 2, the charging decision, and so on. We invite people - you - to judge us against them.

Secondly, having defined the standards we should meet, we made efficiency savings. We re-structured ourselves and dramatically slimmed down our Headquarters staff, putting a greater proportion of our resources on the front-line.

We have also thought long and hard about all aspects of the way we deliver our business. We have been asking ourselves whether we could do things differently and more efficiently, for less cost. We are working hard to simplify policies and processes to make prosecution as straightforward as possible, removing any unnecessary bureaucracy and layers of complexity. We are making ourselves leaner and more streamlined.

That said, we cannot make the all the savings we need to make in isolation from the rest of the system. The criminal justice system needs the agencies working within it to attack the ingrained inefficiencies within the system in a co-ordinated fashion. We are now starting to do so. I would like to highlight two particular initiatives.

The Electronic Case File

A few years ago, the BBC broadcast an excellent adaptation of Bleak House by Charles Dickens. To the BBC, the scenes in the court and the lawyers' offices were part of a beautifully made costume drama. To me, they bore the hallmarks of a fly-on-the-wall documentary. The Victorian justice system, like ours, was paper-based. We have to move forward. Now is the time for the electronic case file to become the main currency in the criminal justice system. This is not a new idea: over the last decade it has been raised time and time again, but nothing has ever really happened. The problems are substantial. It is not just a question of getting law enforcement IT systems - of which there are many - to speak to the CPS systems. It is also a question of the courts being willing to accept service of documents in electronic format, and the defence also being willing to work in this way. What is different now is the degree of co-ordinated buy-in to making it happen. This is an important step, and ultimately one which can deliver considerable savings for all CJS agencies.

So, at the most basic level, imagine a future where a prosecutor comes into court carrying only a laptop. He opens the laptop and begins to prosecute the list. No papers are passed up to the Bench or to the defence: both have already received all relevant material electronically and are working from their own computers. At the end of the session, the results are sent electronically back from court to the CPS office, the Witness Care Unit and the police immediately after completion of the case. That is what we are working towards.

Recently a CPS prosecutor prosecuted a guilty plea case at Winchester Crown Court from a laptop - with the judge also working from a laptop. The sky did not fall in. The virtual file they were using contained the basic details of the offence and the defendant, the indictment, the prosecution summary, relevant extracts from the sentencing guideline, eight witness statements and the exhibits, which included digital photographs of the victim's mouth, extracts from the victim's hospital notes, a letter from the defendant to the victim and the record of interview.

This was a relatively small case. But we have pilots in place in six areas across the country and are seeing enthusiasm from across the system to adopting a new way of working. Of course, the principles of the electronic case file apply to organised crime cases as much as to other kinds of criminal casework. Our Central Fraud Group in Manchester is well on the way to digitalising all their cases. In some of their cases, they are serving evidence on the defence and the court electronically. In operating this way, they avoid the need to paginate, photocopy and courier the huge amounts of paper their cases generate. When you compare the cost of photocopying a bundle of evidence - which can go into four or five figures - to the 10p cost of a disc onto which the same evidence can be burned, the potential for significant savings is obvious. It is our intention that service of all material by disc should become the norm.

The CPS is committed to making our primary work environment digital by April 2012 and in the intervening period we will be working hard with partner agencies to broaden the application of digital working to drive improved efficiency across all aspects of the CJS. Digital working is coming your way.

Closely linked to the electronic case file and as part of a wider digitisation programme, the CPS is increasing the use of Electronic Preparation and Presentation of Evidence at Court. EPE differs from an advocate merely using a laptop or iPad-style device to present a case, as the whole Court is able to see evidence digitally on screens during the trial.

Not only does EPE offer cost savings but it helps us explain our most complicated cases to juries, something particularly useful in our most complex organised crime and fraud cases. We've used it in a few of our organised crime cases. For example, simple 3D images can be created, giving juries a visual representation of locations or buildings. When events are explained in court, members of the jury get a real understanding of the size, layout and location of key evidence. Our impression is that this is particularly helpful as, where we use these techniques, we can explain things to the jury in the way they are used to receiving information, for example as they might when watching a news report. Our view is that EPE is the way forward in our large or complex cases and we are seeking to use it wherever appropriate.

Preparing for the National Crime Agency (NCA)

From the general to the specific. As prosecutors, we appreciate the context in which policing decisions concerning organised crime have to be taken. We accept that it is not always possible to embark on a criminal justice investigation in response a given threat and that disruption - in its widest sense - has a proper role to play in the fight against organised crime. We are very clear, however, that prosecution must be an integral part of society's response to it, and we find no push back against that proposition. We welcome the forthcoming Organised Crime Strategy, which will help us all - law enforcement, prosecutors and others - focus our response to the organised crime threat, from the local to the international.

Against that background, challenge number two will be to maintain and build on our relationship with law enforcement, not least as we move to a world with the NCA taking the lead against organised crime. From my own point of view, I would want to build on my Division's relationship with SOCA. Organised Crime Division was established in 2005 to deal with SOCA and CEOP casework. Made up of experienced prosecutors and now with five in-house Principal Crown Advocates, we provide a one stop shop for SOCA and a source of early advice for CEOP. We have achieved a consistently high conviction rate, and the quality of our work has been praised by our Inspectorate.

We get our good results from our good and early engagement with SOCA. Within 24 hours of a case being accepted for criminal investigation, SOCA notify us and we allocate a lawyer to the investigation. The investigators and lawyers have an early meeting and keep in regular contact. As such, we build our cases together. It means that when we are ready to go, we can prosecute our cases on the front foot: we are not reading into the case at the same time as the defence team - something that happened all too frequently in the past. We also work with SOCA on problems where there is as yet no criminal investigation. SOCA's work on precursor chemicals provides a good example. As part of its response to a strategic threat, it sought advice from us on the kind of evidence it would need to use the criminal law against those who dealt simply in precursor chemicals, substances which are not themselves controlled. We were able to assist, and SOCA incorporated our advice into its planning. So when they had an opportunity to mount a criminal investigation, they took it and involved us from the outset. So it is that last December we saw our first conviction as a result of those plans. David Wain, a chemical wholesaler, was convicted after a trial of (amongst other things) conspiracy to supply controlled drugs on the basis of his supply of precursor chemicals to people we could demonstrate were using them as cutting agents. He is now serving a twelve year sentence of imprisonment. We want to bring this model of co-operative working to the NCA, because we know it to work.

Adapting to the world outside

Challenge number three is to make sure we adapt to the world outside. So far I have covered only the opportunities offered to us by the digital environment. Of course, that same environment offers opportunities to criminals, and cybercrime is becoming an increasingly important part of everyone's planning when considering the challenges that face us. Identified as one of four 'tier 1' threats to our national security as a result of the Strategic Defence and Security Review, it has been placed on a par with terrorism.

First, like investigators, we have had to learn about a whole new environment in which crime can be committed. If we are to advise on and prosecute these cases, we have to understand the digital environment properly, and we have been designing and delivering training accordingly. Secondly, and building on what I have said about the need for early engagement, we need really clear lines of communication with investigators, and the Organised Crime Division and the Police E-crime Unit - two units with a national remit - are putting that in place. Moving forward, we await the Cybercrime Strategy, due to be published later this year. I hope that it will provide a basis for a review of the law and procedure around these investigations. A particular feature of this environment is that international frontiers are meaningless to cybercriminals, and cybercrime presents a real challenge in evidence gathering and, in particular, getting evidence from abroad in as quick and straightforward a fashion as possible. To add value to these investigations, prosecutors have to appreciate the problems investigators face in these kinds of cases and to assist in finding solutions which will not undermine our ability to adduce admissible evidence.

Cybercrime is an example of the advances in technology and changes in the way we live offering new opportunities for criminals, even though some of the crimes they actually commit may be as old as the hills. But we also need to adapt to things that don't change. And that brings me to disclosure.

The law is clear. We have to follow it. A common defence tactic is to attempt to use it to disrupt the prosecution. And we know that this is particularly the case where you are dealing with an investigation generating a lot of data. Cybercrime investigations do that.

There is an astonishing amount of data stored in a single computer, and we have to ensure that we deal with it all properly so that any trial is fair. Key to keeping the process manageable is agreeing a disclosure strategy at the outset of the case and making sure that the court is aware of the way in which we are dealing with disclosure in that case. So, for example, last year we prosecuted two UK-based men for a conspiracy to defraud arising from the respective roles they played in a carders' forum called Dark Market. A place to buy and sell stolen credit card details, review vendors, discuss techniques of fraud, it operated from the US and was closed down there following an operation by the authorities there. SOCA took the lead in the UK and made the arrests here. They seized a large number of computers, all of which they interrogated.

In order to keep the prosecution on track we worked hard with SOCA on choosing how we were going to put our case, what therefore the issues for proof in the case were and what therefore our disclosure strategy should be. Getting this sorted out early on meant that we could be clear with the court and the defence from the outset of the prosecution about our approach to disclosure and, in particular, the search terms we had settled on for the inevitable dip samples of the seized data. As the court was satisfied that we had decided the scope of the dip sample searches correctly, we were able to avoid getting mired in huge satellite litigation over the extent of the disclosure exercise. The upshot was that we were able to focus on the real issues in the case and, on the first day of the trial, we got guilty pleas.

Changing the world where we can

This brings me on to the next challenge - number four. Late guilty pleas represent one of several inefficiencies in the criminal justice system. So, if the last challenge was to adapt to the world outside, this one is to change it where we can. The general work on digital working falls within this category. In addition, the CPS is chairing a working group, with representatives from law enforcement, the judiciary and, crucially, the Law Society (representing defence solicitors) and the Bar (representing defence counsel), looking at how we can exercise better control over Very High Cost Cases - and we are not limiting ourselves here simply to fraud cases. We are looking at all long and complex or serious cases. The group aims to produce recommendations by January next year. Its work is centred around the idea that these cases are major litigation projects and should be treated as such. So, they are examining the way in which the cases are managed - including around disclosure. The group is also looking at digital working and plea bargaining. Abuse of process applications too are on the agenda - what we need to do for them to be conducted in accordance with existing judicial guidance in the form of the management of heavy fraud protocol: full written submissions should be provided; oral evidence will seldom be relevant; and hearings should conclude within a day. Also up for discussion are both the question of trial length – no more than three months - and proceeds of crime - which needs to be factored fully into the litigation plan.

Flexibility

The final challenge is to be flexible in the way we approach cases. That can mean working with law enforcement to mould a case in an imaginative way. So, where the drugs conspiracy investigation may not be coming together a shift in focus may lead to perfectly good mortgage fraud case - and we have several of those. It also means thinking creatively about tactics. What can we do to make more use of SOCPA powers? Can we use plea negotiations as a way of cutting through some of the issues in fraud cases?

An aspect of developing a flexible response is broadening our skills base. Proceeds of crime provides a good illustration here. It is an essential part of the armoury against organised crime. At its most straightforward, it helps achieve justice - criminals should not be allowed to retain the benefit of their crimes. A good financial investigation, conducted in parallel with and not sequentially to, a criminal investigation can produce valuable evidence in support of that investigation. Focusing financial investigators at the outset on the defendant's assets can pay rich dividends when it comes actually to enforcing a confiscation order. And because so many criminals are in it for the money, they are particularly hurt when that money is taken from them. This in turn means that they will fight the proceeds of crime litigation hard. We often find ourselves in the Court of Appeal accordingly and twice in the last four years, we have been to the House of Lords. The trend in third party claims has seen prosecutors develop civil law skills in consequence. Lawyers in our Proceeds of Crime Unit or working in RARTs deal with property disputes all the time. Frequently too they intervene in matrimonial litigation. They have to know about trusts and pensions. We also have our own civil recovery powers, which we are starting to exercise in the High Court - and this means adapting to the techniques of civil litigation as much as the techniques of criminal litigation. For the modern organised crime prosecutor, the law is no longer just about Archbold.

There are other legal developments we had to adapt to as well. In the last decade, we have seen the growth of the ancillary order and the development of the concept of lifetime management of offenders. Serious Crime Prevention Orders are being obtained with increasing frequency. On our SOCA cases, we have obtained over fifty such orders, and on our cases with other law enforcement bodies the number comes to over 80 - with a bit of luck we will have obtained two more this morning. For these orders to be meaningful, they need to be properly enforceable. In practice, this means that they need to be carefully thought through - both in terms of necessity - what is it that is going to prevent or disrupt this individual's involvement in serious organised crime? - and proportionality - at what level do we need to pitch this? Given that in enforcing these orders any ambiguities in drafting are interpreted in the favour of the defendant, we also need to make sure that they are tightly drafted.

So there it is. Our challenge is to adapt to the financial realities of our position. We will do so if we harness technology to work for us and if we harness our energies to work together. We need to be flexible in our tactics, open minded to change and intolerant of inefficiencies in the system. And the thing is, it is not just prosecutors who face these challenges but everyone else who works within the criminal justice system. So I will leave you with this thought - if not now, when?

Alun Milford, Head of Organised Crime Division, May 2011