Speech by Max Hill QC, DPP, to the Policing and Security All-Party Parliamentary Group, 15 July 2019
Good evening and thank you for inviting me here today. It is my first All-Party Parliamentary Group as DPP, although not my first engagement with parliamentarians. I have been pleased to be able to give evidence at three committees so far, and have met with a number of your colleagues.
I want to start by mentioning the subject of many of those meetings - abuse and intimidation of parliamentarians. Criminal offences committed against parliamentarians imperil both the democratic process and public service, and I want to assure you that the CPS is fully committed to pursuing prosecutions in these cases whenever appropriate.
Working jointly with the police, we have produced an information pack for Parliamentarians to help you recognise and report potentially criminal conduct and held a roundtable discussion here in Parliament to help us understand the cumulative impact of these crimes and criminal behaviour. We will continue to work with you on this important issue.
As DPP I want to build understanding of and confidence in the work of the CPS - to build recognition that we make robust legal decisions and successfully bring cases to court every day.
To do this, I am focusing on our casework - ensuring that everyone in the prosecution team has a firm grip on each case they deal with, right from the start of the investigation through to the presentation of the case in court.
As well as looking at our internal processes and decision-making, the CPS also has a responsibility to be outward-looking to ensure our criminal justice system works effectively.
I am determined that we build effective relationships across Whitehall and Westminster. It’s important that we not only listen carefully to the issues raised by Parliamentarians and our colleagues in other Government departments but that we also contribute to policy development where appropriate. The CPS has a wealth of operational expertise that should prove invaluable in ensuring that legislation and policy is workable for the CPS and so contributes to an effective and efficient criminal justice system.
When I arrived in the CPS I found, across the organisation, what you would wish for - namely dedicated, committed people determined to do right. It is now eight and a half months since I took up post and I continue to be impressed by the quality, and the breadth, of the work that our 6,000 staff do.
Another priority for me is to support CPS people - in their work, their careers and their wellbeing. I wanted to ensure the CPS is inclusive and reflective of the diverse communities we serve and that everyone within the Service, regardless of their background, has the opportunity and support to succeed.
But we can do nothing without the police - and the way we work with the police is fundamental to us achieving high quality casework, to our people succeeding and to build public confidence in our work and the wider criminal justice system.
Today, then, I want to talk a little about:
- the role of the CPS, particularly in relation to the police, and how together we can deliver the best possible service;
- then also touch on some of the challenges we face, and what we are doing to address them.
Starting, then, with the role of the CPS.
In defining our role, it is sometimes useful to start with what we do not do.
- The CPS does not investigate crime.
- The CPS does not choose which cases it considers. We are a classic demand-led organisation.
- And the role of the CPS is not to secure a conviction in every case.
Our duty is to make sure the right person is prosecuted for the right offences, and that trials are fair so that offenders are brought to justice wherever possible.
Our independence ensures we undertake this duty impartially, testing a case on its facts alone, without any presumption of guilt. We do not decide whether a person is guilty of a criminal offence - that is for the courts - but must consider whether it is right for a case to go before the criminal court. So those are the headlines of what we do and don’t do.
But going back to the beginning.
First there needs to be a crime, or an allegation of a crime.
The Crime Survey of England and Wales estimates there were 11 million offences committed in 2018 - or 6.4 million if you exclude fraud and computer misuse.
But to enter the criminal justice system an offence needs to be recorded by the police. Nothing can happen without this initial step.
The police recorded almost 4.9 million cases in 2017-18 - that figure excludes fraud, and is the most recent data available.
But, at that stage, the CPS is still not involved.
No case comes to the CPS without there first being an investigation - normally by the police but sometimes another investigator, e.g. Her Majesty’s Revenue and Customs and the National Crime Agency.
So we do not investigate. But we do have a role in advising the police on potential lines of enquiry.
In more complex cases this can happen early in the investigation - with our prosecutors advising the police:
- on the type of evidence that will be needed for us to make a charging decision, and to build a strong case
- OR to identify where a suspect should not be charged.
Last year we provided more than 40,000 consultations of this sort to the police.
Whether or not we provide this early advice, the police must submit a file to us on more serious cases - so that we can decide whether or not a suspect should be charged. In less serious cases - such as shoplifting offences - the police can decide whether or not to charge.
You may have seen that there are been attention recently on a decrease in the number of rape cases being charged, with a suggestion that we have changed our policy on these cases. Let me assure you that this decrease is a cause of concern for all of us in the criminal justice system, and we want to understand the reasons behind it. But let me be clear - there has been no change in CPS policy.
Every charging decision we make - in all types of cases - is based on the same two-stage test in the Code for Crown Prosecutors:
- Does the evidence provide a realistic prospect of conviction? And I emphasise the word ‘evidence’. That means, having heard the evidence, is a court more likely than not to find the defendant guilty? And;
- Is it in the public interest to prosecute? That means asking questions including how serious the offence is, the harm caused to the victim, the impact on communities and whether prosecution is a proportionate response.
The test we apply in deciding whether to charge a suspect is different from that applied by the criminal courts. A jury, judge or magistrate may only convict if they are sure that the defendant is guilty. This is a very different test to that which we apply.
Last year the police submitted 248,356 cases to us for a charging decision.
We charged in nearly 163,000 cases - 65.5%.
But this is not always a simple yes/no decision and it is not a one-time only ask of us. Sometimes we will need the police to do further work before we can make our decision. Sometimes this is a simple request for an additional piece of evidence, such as a witness statement, and at other times the request is more substantial, such as advising the police to open a new, reasonable line of inquiry. And the phrase ‘reasonable line of enquiry’ is important.
In either scenario, we cannot direct the police; we cannot compel them to meet CPS requests. But we can, and do, ask.
Last year, the police did not respond in 32,500 cases where prosecutors requested additional information - and one thing we are engaged in is working to better understand the reasons behind that.
One thing we have to consider when making our decision, and then through the rest of the case, is disclosure. For the non-experts in the room, disclosure refers to providing the defence with information which might undermine the prosecution case or assist the defence. This is not a test we have set. This was a test set by you, Parliament, under the Criminal Procedure and Investigations Act of 1996. And disclosure has been the subject of significant attention over the last 18 months, with the police and CPS jointly acknowledging we need to improve our performance on this crucial issue.
Disclosure is the responsibility of the entire prosecution team and improving how disclosure is handled must be a shared endeavour.
There has been unprecedented joint commitment to this issue over the last year.
But this is a system-wide issue and it will not be solved overnight. We must maintain momentum to bring lasting improvements to how disclosure is managed in the criminal justice system.
It is our responsibility to prepare and present cases in court.
This applies both to cases we have charged, and some of those charged by the police.
Last year we took almost 495,000 cases to court. 83.7% of defendants were convicted - a total of 414,000.
But, and I have been saying this since my arrival, our success is not measured by the conviction rate alone. A fair trial, properly brought, can lead to a guilty or not guilty verdict. And it is not our job to seek an ever-higher proportion of guilty verdicts, but to make sure that every case which satisfies the Code Test goes before the courts.
Throughout the life of a case two things are absolutely vital - quality, and partnership working.
Starting with quality. For police and the CPS, as investigators and prosecutors, ensuring the fairness of trials and upholding the rule of law must be at the very core of our mission. But achieving that starts a long way from the courtroom door - it starts with the police investigation.
If the investigation is not of a high quality, the CPS will either not be able to make a charging decision, or issues will develop with the case later.
And a good investigation is of no use to us if we don’t receive the details of it in a good quality file - which accurately and concisely provides what is needed.
So, and this is going beyond disclosure, we are working closely with the police to improve the quality of the files submitted to us, just as we are working together on disclosure, and we in the CPS continue to focus on our own casework quality - so that together we can provide the best possible service.
Which brings me to the second vital ingredient in prosecuting a case - the partnership between the police and the CPS.
We have different roles. The CPS’ independence is fundamental to our purpose. But it does not mean we cannot cooperate. We can and we must. On individual cases. On tackling specific crime types which emerge. And on adapting to wider changes in society.
It is of fundamental importance that we work together with the spirit of openness and collaboration which allows the systems and processes to work seamlessly and effectively in arriving at the right result as often as possible.
The CPS and police do this routinely, at a local and national level - and our joint work with the Parliamentary Liaison and Investigations Team on the information pack and roundtable on abuse of parliamentarians is a good example of us approaching an emerging issue collaboratively.
But we must keep our focus on it - particularly as we address the challenges we both face today.
And a key challenge is the changing nature of crime.
The scale and complexity of organised crime groups is growing, and we are seeing changes such as an increase in money laundering and complex fraud, the rapid growth of ‘county lines’ drug supply networks, and in modern slavery and human trafficking, which is another particular area of focus to us.
Rapid development in global technology is opening up new ways of committing criminal offences. We have seen this recently in the use of sophisticated software by those perpetrating child sexual exploitation. Society’s reliance on the digital world has increased personal and national vulnerability to cybercrime.
The quantity and nature of digital material has also exploded over recent years, which is an additional complexity - across a range of crime types. For example, body-worn video provides useful (and game-changing) evidence in many cases, which we welcome - but it does increase the amount of material we need to consider in what might otherwise seem to be straightforward cases. At the other end of the scale, a large counter terrorism investigation might recover more than 20 terabytes of material. And when a single terabyte is the equivalent to two solid weeks’ worth of DVD films, you can start to imagine what we and the police are facing with these cases.
This growth in digital evidence was highlighted recently by the Met Police Commissioner, Cressida Dick, in the speech which attracted headlines about her description of national police detection rates for some offences as ‘woefully low’.
Each emerging crime type - each new challenge in gathering and examining evidence - we must tackle together with the police. We need to work jointly - and nationally, which can be a challenge with 43 different police forces. Coordination between them is key.
We are developing new approaches together in a variety of ways. For example, in relation to crimes targeting parliamentarians, we are working with the police and parliamentarians to develop a community impact statement which will demonstrate the impact these crimes have on the individual, the community and on our democracy. This statement will be taken into consideration when a prosecutor is considering whether a prosecution would be in the public interest. It may reduce the need for MPs or their staff to give evidence in court in some, though not all, cases. But in many cases I imagine that that would be the impact.
You would be surprised if I did not mention another challenge both the police and we face. The issue of resources.
There has been an extensive public debate about resources across the criminal justice system, and it is perfectly right that there continues to be scrutiny of whether all parts - from investigators to prosecutors and defence, the courts, prisons and probation - are equipped to provide the service the public expects.
The CPS has managed a significant reduction in funding, and consequently a substantial reduction in our staff numbers in recent years, while maintaining the service we provide.
My predecessor said there is no scope for further cuts without an adverse impact on performance and I would go a step further to say we must be resourced to deal with the impact of changes in both the crime landscape and the criminal justice system on our workload. If the public is to trust that the system works, the CPS needs to be able to respond to the shifts we predict in the short to medium term.
And this is another issue we must address in a coordinated way - because investment elsewhere in the system has an impact on the CPS. If, for example, the police hereafter are not only more resourced, but can devote additional resource to investigating particular offences, the result will frequently be more cases coming through to the CPS - and we will need the resources to cope with that.
I think I have covered everything that I wanted to say, save that we are currently developing our next strategy, to take us to 2025 - and we are taking account of all these issues.
If we are to build confidence in the work of the CPS - and the criminal justice system more broadly - we need to ensure all parts of that system are working together, and are equipped to deal with the challenges we face.
I hope I can return and discuss these issues again with you, and others, as we strive to achieve this in the months and years ahead.