Max Hill QC's opening speech to the Heads of Prosecuting Agencies Conference
Good morning, and welcome – to London and to this Heads of Prosecuting Agencies Conference. What a pleasure it is to be together in-person again after three years, and we are delighted to be hosting you all here.
I see this as such an opportunity – for us to share experiences and learn from each other, to build connections and find ways we can help each other. I am grateful to you all for being here, and in advance for the insightful and constructive contributions I know you will bring – whether through the planned speeches or the equally important discussions we will have on each topic.
As you know, we have three themes for our time together. Three themes which I am sure affect us all; three themes which encompass so much of what we are all dealing with right now.
- Covid: Challenges, Responses and Digital Transformation
- Emerging Crime Types and Threats
- Pursuing Economic Criminals and Recovering Assets
I’ll say a little about each now to set the scene, but I’m looking forward to hearing from you all – to learn how you are dealing with these challenges, and how we can help each other.
Starting then, with Covid-19. The pandemic was an unprecedented test for the criminal justice system here in the UK as I am sure it was in each of your countries. But in managing its impact, we proved what was possible. Alongside our partners, the Crown Prosecution Service played a key role in ensuring that the criminal justice system continued to operate throughout the pandemic – and we are now making important contributions to help the system recover.
From day one in March 2020, we continued to deliver our full range of core functions without interruption. Almost overnight, most of our colleagues moved from offices and courts across England and Wales to work from home. Where needed, staff continued to appear in person in court throughout lockdown, while others travelled to offices to complete vital work.
This rapid adjustment was only possible because we had long been investing considerably in our digital capacity and capability.
This digital investment also paid off with the rapid roll-out of remote hearings. The speed and scope of this was unprecedented: the very real need to deliver truly at pace led to us establishing capabilities in weeks that were expected to take years, and it has proven to be an effective method.
Unfortunately, it was just not possible for the system to run at its normal scale and pace during the worst periods of the pandemic. 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 around a third higher than the baseline.
Within the CPS we are playing our part to clear this backlog, while using what we have learnt from the last two years to improve the service we provide.
We’ll be getting quickly into that first theme after my opening remarks, so I want to focus now on the second and third themes, which are closely linked – and I think particularly relevant for an international event such as this…
Emerging threats, economic and organised crime
Because the lines between organised criminality, fraud, money laundering and international crime are becoming increasingly blurred in our digital-first society. Organised crime groups are evolving and developing their tactics. They are using fraud schemes as part of their offending and laundering the proceeds of their crimes. Similarly, further investigation into money laundering or fraud operations often links back to organised criminality.
The nature of criminality we are dealing with poses a number of challenges for prosecutors – wherever we are working. I want to highlight three of these then say a little about how we are tackling them here in England and Wales.
Changing nature/new threats
The first challenge is the very fact that crime is changing and new threats are emerging. The crime threat is continuously growing and evolving, with criminal networks becoming increasingly resilient and adaptable, quickly exploiting advances in technologies, services, and products, such as cryptocurrency, and thereby being able to operate across multiple jurisdictions.
This means we also need to be highly skilled, adaptable, resilient – and able to work effectively across borders – to bring robust prosecutions.
Tomorrow we will look at the development of emerging crime types and threats – including cybercrime, the darknet and novel uses of technology by serious organised criminals. I look forward to hearing your experiences as will discuss our responses to them.
Complexity and disclosure
Moving on to the second challenge. Emerging crime types and economic crime cases are amongst the most complex work that we undertake as prosecutors – and this is most notable in the volume of digital material that any one case generates.
In one of our current cases there were 82,000 pages of served evidence.
We were faced with approximately 32 million files across all devices. We identified which file types (excluding emails) that could contain relevant material and were left with more than 1.3 million. In addition there were more than 617,000 relevant email files.
Chat backups identified on computers initially totalled almost 500,000 messages – many of which were in foreign languages. The review process filtered these to 24,000 relevant unused messages and 10,000 were used in evidence.
I am sure you have similar examples in your jurisdictions but I think it is worth pausing to remind ourselves the scale of the cases our prosecutors are dealing with – and the disclosure challenges that creates.
The capability and capacity to sort this material according to relevance, sensitivity, and the disclosure test is critical to the viability of any case. Early engagement between investigators and prosecutors is therefore vital to help develop case strategies around digital material and disclosure. Early engagement with the defence will also be crucial in helping to identify reasonable lines of inquiry, as well as narrowing down the case issues.
We also hope that technology will help to ease this burden in future – and we are particularly interested in how new technologies such as artificial intelligence (AI) can make a difference in facilitating the process. However, this is not about taking humans out of the process – our casework decisions will always be made by highly trained prosecutors exercising their judgment.
And that brings me to our third challenge, the vital issue of resources. The effective prosecution of emerging crime threats and economic crime requires significant resources. And not just at the prosecution stage.
Here in England and Wales the CPS can only consider a case once it has been investigated by the police or other relevant agency – so for effective prosecution of fraud we need effective investigation.
And we also rely on being able to bring a case before the courts. As I have touched on already, and we will discuss in more depth shortly, the Covid-19 outbreak presented an unprecedented challenge for criminal justice, which has had a significant impact on delay and the backlog of cases. As of January 2022, the CPS’s caseload of the most complex frauds in the Crown Court had increased by around 56% since March 2020.
What are we doing?
So what are we doing to address these challenges?
Earlier this year we launched a united team to tackle the changing nature of crime.
Our new Serious Economic, Organised Crime and International Directorate (SEOCID) brings together specialists in economic crime, organised crime, proceeds of crime and international to deliver justice, combat crime across borders and take money back from criminals.
It makes us more resilient and agile in the face of new and emerging threats, giving us better opportunities to stop criminals from financially benefitting from their offending.
And it will help us to continue to develop expertise in crucial areas. To help with this we offer specialist training – we’ve recently held training on ‘Post EU exit Extradition and International enquiry’ and we are currently working with the UK’s Revenue and Customs department to deliver a cryptocurrency foundation course for our prosecutors.
Our International team is an integral part of our new directorate – recognising the global nature of so much organised and economic crime.
We have a network of CPS liaison prosecutors deployed overseas – including one in South Africa – as well as two UK-based ‘roving’ prosecutors, who cover Ireland among other countries. These prosecutors are part of a collective Government approach to deliver improved criminal justice outcomes domestically, and to tackle crime in source or transit countries to reduce harm and impact on the UK. They work to ensure that information, evidence, and assets can be secured from abroad, and suspects and witnesses who are located overseas are available to support domestic investigations and prosecutions.
For example in a recent case one of our Liaison Prosecutors assisted in obtaining evidence from an overseas jurisdiction for a money laundering trial – this timely facilitation of evidence before the trial secured a guilty plea from the defendant. In another example, our Liaison Prosecutor’s understanding of the post-Brexit landscape in a European country helped secure a successful extradition to the UK so a suspect can be prosecuted for an investment fraud.
The importance of international collaboration and having excellent relationships in priority countries cannot be underestimated, with international considerations now forming a key part of our casework strategies from the outset.
Proceeds of crime
Our Proceeds of Crime team is also part of our new directorate – so they are best placed to recover illicit gains in complex organised and economic crime cases. In the last five years, across all our casework, we have recovered assets worth £530 million through confiscation orders and we work to ensure victims are compensated wherever possible.
There is a current focus on “non-conviction-based” confiscation and many countries, including the UK, are using investigative tools to target unexplained wealth (or illicit enrichment). The UK Government has indicated that it will shortly be introducing legislation to specifically address the recovery of cryptoassets and reform the way companies are registered. This follows the recent strengthening of the UK’s ‘unexplained wealth order’ regime as well as the introduction of a register of identifying those overseas who have a beneficial ownership in property and companies in the UK.
The CPS is very much a part of that conversation – and we are currently developing our non-conviction-based confiscation capability. This will be explored further on the third day of our conference as part of our discussions on economic crime, and I am keen to learn from colleagues about your approaches to this important issue.
Network of Economic Crime Prosecutors
Moving beyond our new specialist directorate, and back to economic crime specifically.
We have to recognise how widespread fraud is – in the UK it accounts for more than 40% of all crime – and the impact that has on the people we serve. Not all frauds are huge, international crimes – some are carried out by individuals, working alone. Not all frauds involve millions of pounds – but their impact on individual victims can be devastating.
And so we need to be able to tackle all levels of fraud. We have therefore set up a network of economic crime prosecutors to enhance skills and capabilities throughout our organisation. This network will draw on the existing expertise from our specialists to gather and disseminate best practice on prosecuting fraud and other economic crime across the 14 CPS regional areas. This is particularly important in light of new and emerging threats, such as the increase in cyber-enabled economic crime – 80% of fraud is estimated to be cyber-enabled.
Work with government to ensure we are best placed
We are fiercely independent here at the CPS, but that does not mean we do not work with others. And in tackling the sort of challenges I’ve set out today it’s essential we work with the government to ensure we are in the strongest possible position.
- That includes ensuring our legislative framework allows us to prosecute effectively, so for example we have recently been supporting a review of Corporate Criminal Liability laws and the potential expansion of the existing ‘failure to prevent’ model to fraud offences. The UK has led the way and set a gold standard on corporate criminal liability with the Bribery Act. However, a restrictive application of the identification doctrine has caused challenges in enforcing corporate criminal liability in relation to wider economic crime such as fraud. That is why I support expansion of the existing failure to prevent model to wider economic crime, which would enable us to hold both corporates and individuals to account for their part in the wrongdoing. Such a development could help enhance the UK reputation and international cooperation on economic crime cases involving corporates.
- We have also worked with the government to ensure we can continue prosecution or asset recovery action when the government imposes financial sanctions on individuals. Sanctions are an important tool for the government – as we have seen so clearly in recent months – so we need to make sure the interaction with law enforcement and prosecution is managed. We have been working with government to ensure that sanctions freezing property do not preclude separate asset recovery action. To this end the UK Government recently issued a General Licence which allows asset recovery action to take place against any property otherwise subject to a financial sanction.
- We are also working closely with our criminal justice system partners and the government on recovery from the pandemic, and encouraging the use of technology to help clear the backlog. Specifically, on economic crime, we would support any plans for dedicated economic crime courts and use of virtual case management hearings at earliest stage. We also believe that case management could be enhanced by ensuring that complex economic crime cases go before specialist judges who have the right expertise to effectively deal with such cases.
On each of the topics we discuss I would be interested to hear how you work with your respective governments and partner agencies, and whether there are any points on which we should be working together.
Because, more than anything, this week is about us coming together – to share, to learn and to find solutions to the challenges we all face, wherever in the world we are prosecuting. Our justice systems may vary but we all have the same purpose, and we can help each other – on individual cases, in tackling shared challenges and by supporting each other.
We have deliberately built in time for discussion throughout the agenda so please do share your experiences and thoughts – I look forward to hearing from you.