Criminal justice after COVID-19 - Max Hill QC, Director of Public Prosecutions

Future of Legal Practice series, King’s College London

Hello, it’s a pleasure to join you this evening.

Two years ago today all of our lives had just started to change – the night before we’d been asked to stop all non-essential contact with others and all unnecessary travel. A week later we were in full lockdown. It was a terrifying time – and marked the beginning of a period of greater magnitude and trauma than we could have imagined.

The impact of the COVID-19 pandemic will stay with us for some time to come. Personally, professionally and across our entire society.

This series of events is about the future of legal practice – so I hope you’ll forgive me for an initial reflection on what has gone before. In looking to the future, we need first to understand both our past and our present – particularly after the unparalleled period we have all experienced.

This evening I want to outline how we at the CPS are playing our part in the recovery of the criminal justice system. But I will then go on to consider how we might do more than just recover – how we might improve the system for the future, particularly for victims and witnesses.

The impact of COVID-19

The pandemic was an unprecedented test for the criminal justice system. But in managing its impact, in keeping the wheels of justice turning in the most trying of times, we proved what was possible. Alongside our partners, the CPS played a key role in ensuring that the criminal justice system continued to operate throughout the pandemic – a very significant achievement.

Unfortunately, it was just not possible for the system to run at its normal scale and pace during the worst periods. This meant that by September 2020 the CPS’s live caseload was 80% above the February 2020 pre-Covid baseline. We have made significant progress since then, but the live caseload is still 32% above the baseline.

The effects of delays – particularly in the Crown Court – are serious. For victims and witnesses, prolonged waits can impact their ability to move on with their lives. Defendants – including some held in custody – are also seriously affected when they must wait longer for their trial.

So we need to be as creative and determined in tackling the backlog and mitigating the impact on those in the system – and shaping the criminal justice system of the future – as we were in responding to the immediate impact of the pandemic.

Within the CPS we are playing our part to clear the backlog while ensuring best possible service for victims and witnesses:

We are focusing on ensuring cases are ready and working with partners – both nationally and locally – to make sure hearings are effective. For example, in the West Midlands, police, CPS and HMCTS have worked together to identify trial cases listed in three weeks’ time, identifying and addressing outstanding issues early to ensure that the case can proceed on the day.

We are recruiting. Over the past year our workforce has grown by 5% – including an additional 88 Senior Crown Prosecutors and 112 paralegals and administrators. This has provided additional capacity to deal with backlogs, and has helped us to prioritise cases involving rape and serious sexual offences.

But we are not stopping there – we will continue to grow in the year ahead, including a programme to develop our own experienced prosecutors for the future.

And here I want to mention our paralegals specifically. In the Crown Court our paralegals play a crucial role supporting victims and witnesses and ensuring the smooth running of cases, particularly trials. We are significantly increasing their numbers in Crown Courts to manage the increase in caseload and ensure we can continue to deliver high levels of service.

We are also about to embark of a pilot scheme deploying paralegal officers to our magistrates’ court teams. They will attend court to support victims and witnesses in more serious cases – including youth cases.

We are reforming how we communicate with victims – because we recognise that our current service needs to be improved. We commissioned research into victims’ needs and will use the findings to overhaul our model of communication, making sure we improve the support we provide to victims of all types of crime.

Others across the system are also playing their part. But each partner individually carrying out its role to the best of its ability will not be enough to eliminate the backlog and improve the system to the standard we all want to see – we need to work together as never before, we need strength in all parts of the system and we need to consider what needs to change.

Recovery does not mean reverting to March 2020 – we must aim higher. So I want to explore a few ways in which we think the system could be improved.

Looking ahead

Digital technology:

Remote hearings

We are one of the most, if not the most, digitally advanced prosecution services in the world – but that does not mean we can be complacent. We need to continue to invest and innovate when it comes to digital technology.

That includes developing a consistent national approach that makes best use of remote hearing technology – a vital piece of the puzzle in terms of allowing courts to operate at the higher capacity required to clear the backlog.

Remote hearings were introduced at an astonishing scale and speed during the pandemic – but that means that currently there is inconsistent adoption and confusion around the best way to use technology.

Remote hearings are not always appropriate – there are certain types of hearing which it is important to hold in person. To my mind, this clearly includes trial hearings.

That is why I advocate a mixed-economy approach – hearings that cannot take place virtually should absolutely continue in person, but those more straightforward hearings that have already worked well remotely should continue virtually.

Digital jury bundles

I also want to mention jury bundles – one of the last parts of the criminal justice process which remains paper-based. To give you an idea, on the first day of a standard trial, perhaps lasting one two or three weeks, each juror is presented with a bundle of material of about this size.

Paper jury bundles are out of step with the modern, digital-first justice system that we want to build. They are costly from an environmental, financial and resource perspective, and make flexibly rescheduling cases at short notice very difficult.

We are therefore working with partners across HMCTS and the judiciary to trial a digital solution, whereby the jury will access their bundle on a tablet. They have been used effectively in some larger, complex trials, but we want to work towards it being normal practice for all cases.

We need to carefully consider accessibility, and indeed propriety – ensuring that tablets are stored securely and individually, and that all members of the jury can use these digital tools comfortably. Our priority will always be ensuring that trials can continue fairly and transparently.

Artificial Intelligence (AI)

But we don’t just want to keep up with the rest of society in terms of our use of technology – we also need to be looking ahead to future opportunities, such as artificial intelligence (AI).

When we consider how we can use AI, we need to look at our processes and ask the question: what can helpfully and safely be completed automatically, or with the assistance of AI, and what requires a human to make decisions? This is not about taking humans out of the process – our casework decisions will always be made by highly trained prosecutors exercising their judgment.

Our digital teams are currently developing several solutions which use AI and/or automation – all of which are in prototype or early development stage.

For example, we spend a huge amount of time checking documents to make sure that all personally sensitive data has been redacted, to avoid any risk that details not relevant to the case are inadvertently shared. We are exploring how we can use AI to automatically highlight this data, making redaction faster and more reliable.

We have been working with several police forces to support their piloting and adoption of AI tools for their investigators, ensuring that these tools can meet the requisite evidential standards.

While these projects remain in their early stages, we hope that ultimately, they will streamline the administrative demands of our work, freeing up our colleagues to focus on what really matters: high quality decision making, careful case building, and professional support for victims and witnesses.

Court hearings:

Listing

Court time is at a premium now more than ever, so we must make the very best of it.

Our response to the pandemic clearly demonstrated the value of cross-system cooperation in finding the best solutions to the challenges we face. We must not lose that. For example, the listing of court cases – when they will be heard and where – is a matter for the judiciary. But its success relies on all parts of the system working together.

As a system we need to focus on victims, witnesses, defendants – those most impacted – and consider how we can best prioritise cases and hearings.

One word of caution – it is not as simple as ‘list as many cases as you can’ – for at least two reasons:

• First – if more cases are listed than the court has capacity for, some will be postponed at short notice, leading to uncertainty for everyone. This is sometimes unavoidable, but we must minimise it wherever possible.
• Second – every case listed needs to be prepared, and each lawyer and paralegal can only prepare so many cases. So, if cases are listed that the court then does not have time for, effort has been wasted. And we can ill afford wasted effort.

Automatic right of appeal

Can we also go further and consider whether there are some more fundamental changes we can make? For example, does a key part of our system – appeals – strike the right balance between fairness to defendants and fairness to victims and witnesses?

Let me be clear – the right to appeal a court’s decision is a vital safeguard. But should defendants who want to challenge their conviction automatically be given a whole new trial? With all the implications for the system and victims and witnesses?

Because that is our current system with appeals from the magistrates’ or youth court.

Unlike appeals from the Crown Court, the defendant does not have to demonstrate to judicial satisfaction why their conviction might be unsafe – they simply ask and are given a new hearing in the Crown Court. This means that victims and witnesses have to give their evidence all over again in a fresh trial despite a tribunal having already convicted.

And – particularly when Crown Court backlogs are so significant – they often face a significant wait to do so. The first trial and the evidence they gave count for nothing as the process begins again.

It is therefore unsurprising that some appeals succeed simply because witnesses do not attend the new hearing.

And I should highlight that this system includes youth court cases – in which the victims and witnesses are often children, and which may involve serious offences, such as rape.

Any decisions on this issue would require careful cross-system discussion – and I am clear that the right to appeal a decision must remain.

But why not adopt a system – like that from the Crown Court, which requires permission to appeal from a judge – which would sift out cases without merit? It would make the system more efficient, and a great deal fairer. And when an application for permission to appeal is granted, why not do as we have long done in the Court of Appeal – decide the appeal based on an accurate record of the trial proceedings, without witnesses having to come to court to give evidence all over again?

Victim and witness experience

Moving on to another area affecting victims and witnesses.

The current way in which witness evidence is adduced has not kept pace with modern technology.

The process of providing live evidence to the court should not be a test of a witness’s memory – and in some ways our current system relies on outdated assumptions around witnesses and the purpose of giving evidence.

So how can technology help us here? Might the court – and justice – be better served if witnesses recorded a video statement at an early stage in the proceedings, which is then played as their evidence in chief?

This already happens as a special measure for vulnerable victims and witnesses and certain intimidated victims – but might it be of benefit for a wider range of victims and witnesses?

And might body-worn video – which police officers automatically record at crime scenes – be one way to record these statements, particularly in more straightforward cases?

This would, for example, enable the police to record a witness statement from the complainant at the scene of the crime and for the witness to subsequently affirm the truth of its contents either in a written statement, further video recorded interview, and (if called to give evidence) on oath at trial.

The advantages of extending the use of body-worn video might include:

• Better representation of the immediate impact of the offence – capturing both the emotion and environmental context for a judge or jury; And
• Speeding up and improving the way police obtain evidence from victims and other witnesses, enabling them to submit stronger cases to the CPS.

There would of course need to be certain safeguards – the witness would need to understand they were giving a formal statement, they would need to have the opportunity to add to or clarify their statement outside the heat of the moment, and of course cross-examination must still be available.

Within the CPS

Taking a step back from the broader system and into the CPS.

Our people are at the heart of everything we do, and it is our colleagues who will rise to meet the challenges ahead. As we look to the future, we need to be the best that we can be.

As we welcome new faces, we continue to focus on making the CPS a truly outstanding place for all our people to work.

This includes nurturing existing talent through a range of in-house development programmes, including our Prosecutor Pathways, which support colleagues from a range of paralegal and administrative roles into legal careers; a legal trainee scheme that is recognised as one of the best available to aspiring solicitors and barristers, and a comprehensive learning support offer across each of our nine professions.

We pride ourselves on fostering a truly inclusive culture – supported by strong relationships with our excellent staff networks – and we prioritise wellbeing, which has been so important throughout the pandemic.

Closing

The past two years have tested us all, in so many ways. I am incredibly proud of how we responded to those tests and worked collaboratively with our partners – and our response gives me confidence that we can meet the significant challenges that remain.

It also makes me even more ambitious – we have shown what we can achieve against the odds – so let’s take that determination, that creativity, and apply it more widely – to make our criminal justice system the best it can be.