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Speech by Max Hill QC to the National Criminal Justice Conference

|News, Sexual offences

Good afternoon, everyone. I am pleased to be here with you today, and it is a pleasure to follow the Chief Magistrate – supporting vulnerable victims and witnesses is a priority for all of us, and it was invaluable to hear his insight.

I trust you have found the conference enjoyable, and that it has provided a useful opportunity to meet with colleagues – in person – to discuss the challenges we face and, I hope, work on solutions.

I want to start by thanking all of you, and your officers, for your extraordinary work over the past 20 months. We have all faced unprecedented challenges since March 2020 – when this conference was in fact due to take place originally. We have had to adapt to new rules and regulations in both our professional and personal lives, while responding to a vastly altered operating environment and new types of offending. I know that the frontline burden of maintaining public safety and enforcing the necessary regulations at the height of the pandemic fell on you and your colleagues – thank you. I also know that your officers have experienced appalling assaults during this time and want to assure you that the CPS is committed to doing everything in our power to protect those who selflessly keep us safe.

Context – challenges and opportunities

As we have emerged from the pandemic, we have all had to deal with its legacy. The court backlog has created significant pressure across the system, alongside additional and very understandable scrutiny of our work. I was heartened by the recent funding allocated to the CPS within the Spending Review, which will help provide the additional resources we need to tackle the court backlog – among other things. That said, of course it takes time for financial investment to translate into the easing of operational pressures – and the challenge in this area is far from over.

Criminal justice scorecards, assessing various aspects of performance across the system, are being introduced by the Government, and will soon be published regularly with a view to improving transparency.

Public confidence is vital to the work of both policing and the CPS – and we are committed to transparency and the accountability it brings. While we already publish a wide range of CPS performance data – and moved last year from annual to quarterly publication – we welcome the cross-system approach of the scorecards. The scorecards will be of mutual interest to the CPS and Police, and indeed the wider CJS, as they will include data on file quality and timeliness – both important measures against which we all want to improve our performance. The challenges we face are system wide – and so too are the solutions. This makes understanding exactly how we are all performing, and where we can all improve, an important part of our work.

Our shared governance arrangements – including the Criminal Justice Taskforce, which feeds up to the Criminal Justice Board – will help with this. We are coming together across the system as never before – you are represented in those discussions, often by AC Ephgrave, and I represent the CPS.  Crucially, by working jointly to analyse our data and spot developing trends and issues early, we can identify and agree appropriate action together.

One prosecution team

And that brings me to the crux of my speech today: we – that is, the CPS and the police – are in this together. It is only by working collaboratively that either of us can achieve meaningful and lasting improvement. Our operational remits are distinct, and our independence is important, but our common goal – of bringing criminals to justice – means that our challenges, and our triumphs, are shared.

Interestingly, I think one of the most common misconceptions is that our division of responsibility is as straightforward as ‘the police investigate and the CPS then decide whether to charge’ – which of course we all know is not straightforwardly the case, given that around 63% of cases are charged by police, with the CPS making decisions on the more serious and complex remainder.

And when it comes to those cases, one crucial area of collaboration is early investigative advice – we want to support you to build the strongest possible cases from the outset. It allows you to direct your efforts in the most effective direction and helps make sure our prosecutors have the information and the evidence they need to make accurate and timely charging decisions. This has long been an effective approach in counter terrorism and other complex cases, and is something we have been focusing on providing in RASSO cases.  We want to build on this and be better at providing this support more widely, across other serious crimes.

Renewed focus on our work has brought with it considerable investment, and clear positive opportunities. Sitting as we do at the very heart of the criminal justice system means that we know just how important our work is: and its prioritisation by government is something that I welcome. It places us in a better position to bring our expertise and knowledge to bear across Whitehall – and we must continue to work together to explain the reality and complexity of our work in a way that effectively supports our shared objectives.

In doing so we must also remember that our independence is sacrosanct. Both while working together and as we jointly engage with Government, it is vital that we always remain free to make independent operational decisions.  

Societal issues

As public servants, we need to remain alive to the wider society in which we operate – so it is worth taking a few moments to explore some of the broader issues to which we must respond in our work.

The killings of Sarah Everard and Sabina Nessa created a watershed moment across society – and also in our ongoing work to address violence against women and girls. Without doubt there is a crisis of public confidence in the criminal justice response to crimes of violence against women and girls. We need to be open about the work we are doing to improve and be transparent about every aspect of our practice and decision making.

While there has rightly been significant focus on rape and serious sexual offences – which must continue – we also need to widen our lens and look at the full spectrum of behaviours and offending in this area. This includes what can be described as “precursor” offending, such as indecent exposure, stalking, street harassment and spiking, whether that’s via drinks or, following recent reports, injections.

The CPS has a long-established Community Accountability Forum or CAF which brings together CPS colleagues (in listening mode) and experts, community voices and victim representatives to explore issues that are important to the communities we serve. On Monday this week, we held a CAF on street harassment to develop our understanding of the impact on victims and the wider community.

We have a long way to go to restore public confidence together – so we are pleased to see Deputy Chief Constable Maggie Blythe appointed as the NPCC’s National VAWG lead – and we were pleased to have Maggie speak at Monday’s event, and look forward to working with her and police leads for Domestic Abuse and Adult Rape.

To turn specifically to RASSO: we know we are not where we want to be on tackling these crimes, but we are taking action – and our shared commitment to improvement is clear, not least through outstanding leadership in this area from Chief Constable Sarah Crew, the NPCC lead for adult rape, and Sue Hemming and Baljit Ubhey, the CPS’ joint Senior Responsible Officers for rape and serious sexual offences. I would like here to congratulate Sarah following her formal appointment as Chief Constable for Avon and Somerset last week.

I know that the criticism and scrutiny we receive can be difficult for frontline investigators and prosecutors, who are doing their best in challenging situations to ensure victims see justice – so it is vitally important that our frontline colleagues see both CPS and police senior leaders taking responsibility for our collective performance.

As leaders we also need to ensure the right support is available for our teams. Recent funding uplifts for both the police and CPS will help to address the resourcing issues we have faced. As we recruit into our teams it is vital we have structures in place to support new colleagues and build expertise. We are working together on a detailed training needs analysis and we have produced some joint webinars on important areas such as digital disclosure and reasonable lines of enquiry, and third-party material. Locally our police officers and prosecutors are arranging joint events.

Through the programme of work we have in place – including the CPS’s five year strategy, RASSO 2025, and our Joint National Action Plan, we are working at all levels to improve the handling of rape cases. This includes working closely together in six CPS Areas and corresponding police forces through Operation Soteria pathfinders, which are projects to test innovative ways for the police and CPS to investigate rape cases. As you will all no doubt be aware, the pathfinder activities will be varied in each area to focus on local priorities, build on existing infrastructure and process, and stress test the impact of different approaches.

Like you, we are optimistic about the way this work is progressing, and keen to see it expanded to more areas. But we must properly evaluate the findings from these pathfinders before they can be rolled out wider. What is clear from the early findings of this work is that successful partnership working on the frontline must be led from the top – and it is incumbent on all of our leaders to promote that.

We are also taking national action where it is needed, including to better support victims of these awful crimes.

Sadly, we know many rape survivors either do not report an offence or withdraw from a prosecution because they find the criminal justice process too traumatic.

We have listened to these concerns and are committed to improving every aspect of how we handle these offences so that victims feel supported to stay on board with a prosecution.

Complainants giving evidence in RASSO cases are entitled to request the public – including any supporters of the defendant – be excluded from the courtroom under section 25 of the Youth Justice and Criminal Evidence Act 1999.

This special measure is available regardless of whether the witness chooses to enter the courtroom to give evidence or does it entirely by video link – but it is rarely used.

I want to see more complainants benefit from these powers, and so today the CPS and NPCC are jointly publishing an information sheet for prosecutors, investigators and victim support groups to raise awareness of s.25 measures and drive up their use.

We hope encouraging greater use of s.25 measures will go some small way to making the process easier for survivors and help them to give their best evidence so we can present the strongest possible case in court.

I encourage you to promote section 25 with your teams – so that they can highlight cases where it might be useful, and our prosecutors can then apply for the measure in court.

I will now turn to domestic abuse, which has been brought into sharp relief during the pandemic, with victims forced into close confinement with their abusers as a result of lockdowns. There has been a steady decline in the number of domestic abuse referrals from police to the CPS, although our most recent data shows a small rise. The number of prosecutions has also fallen.

Last month, our senior VAWG leads – Sue and Baljit – met with DCC Maggie Blythe and the NPCC leads for rape and DA, where our joint commitment to understanding and addressing these issues was reaffirmed. The CPS has recently carried out part one of a landscape review to understand what is happening in CPS Areas around the country.  This will inform additional commitments in our CPS operational action plan and our joint work with the police. But I do want to make clear that where you send us quality files that meet the Code test, we will not hesitate to charge.

We recently updated our Legal Guidance to assist our prosecutors, with changes covering technical legal aspects, and we will be publishing an updated version covering wider issues shortly. We have also identified some excellent partnership work across the country – and there is work in train to develop and share this more widely.

Public confidence in the criminal justice system’s ability to deliver justice in these cases is low. We must work together to rebuild trust. In particular this means better support for victims to report and stay the course of a case.

Moving on to another important social issue where we have a vital role to play. We are all aware of the murder of George Floyd in 2020 which set off a global chain of protests linked to the Black Lives Matter movement against systemic racism and the often violent implications for Black and minority ethnic people. A vital conversation on racism is continuing across society – and this must be mirrored within the criminal justice system.

At the CPS, we have been considering our own record, and working out what more we need to do. We are very proud to have a diverse workforce, and structures in place – overseen locally by our Inclusion and Community Engagement Managers, and nationally, as I mentioned earlier on through our Community Accountability Forum, or CAFs – to receive the views of the diverse communities we serve on current issues.

We’ve held CAFs to discuss topics including ‘race and the criminal justice system’, hate crime, and young people and serious violence with a focus on knife crime - an epidemic, disproportionally affecting young men from minority ethnic groups.

The disproportionate representation of minority ethnic groups in the CJS – like so many of the issues we face – is a whole-system problem which can only be addressed by looking at the whole system. We have a vital part to play in that – and it starts with working together to build a system-wide understanding of what is contributing to disproportionality, before finding shared solutions to address it. I am pleased we are in touch with Deputy Assistant Commissioner Amanda Pearson, your lead for race disproportionality, on this.

Collaboration in practice

Two threads which have run throughout my remarks today are joint working and leadership. I have briefly referred to the Joint Operational Improvement Board, but I want to outline now how it has driven forward improvements in vital areas of our work. 
The CPS, NPCC and College of Policing came together in 2018 to establish a new joint governance structure, to oversee joint work on disclosure and case progression – both extremely important issues. Given the success of this group in those areas, we took the decision to bring our work on rape and serious sexual offences under the group’s purview.

The achievements we have seen in respect of disclosure in particular shows us that this governance structure is capable of achieving effective change.

Alongside this national engagement, there is a raft of joint work happing at local and thematic levels.

Some of you may have attended a session yesterday led by Chief Constable Jo Farrell and Sue Hemming, who as well as being the CPS’s joint SRO on RASSO, is one of our three Directors of Legal Services. In March this year we published a joint commitment on Case Progression, seeking to address practical issues which present barriers to effective case progression as well as promoting a change in mindset towards proactive case management and progression.

Our joint approach to improving performance has been completely refreshed in the form of a new Joint Operational Improvement meeting, guidance for which was circulated to all Chief Constables and Chief Crown Prosecutors in a comprehensive Case Progression Toolkit in a letter from Jo and Sue last week.

The launch of the JOIM follows an extensive review undertaken by the College of Policing, CPS and NPCC in which there was strong support for effective, local-led operational meetings between forces and the CPS. JOIMs build on the successes of our current local meetings (PTPMs), and give each CPS Area and local forces the space to identify their priorities and drive strategies to deliver improvements based on their local context. I hope you will agree that these are one of the most important opportunities we have for driving forward improvements collectively.

I am now going to handover to Kate Brown, CCP for the South East Area, to talk about her Area’s work on RASSO.


Case study – Kate Brown

Good afternoon everyone. Max has already referred to some of our joint work on RASSO at a national level, and resulting from the end-to-end rape review, but, as the Chief Crown Prosecutor for the area, I am going to spend a bit of time talking about a pilot in place across the South East.

Our pilot began with the establishment of the Rape Response Improvement Group, commissioned in 2020 by the then Chief Crown Prosecutor for the South East and the three Chief Constables of Sussex, Surrey and Kent police forces.

Several initiatives were set up, including a pilot on providing early advice, pre-charge and case progression clinics, NFA scrutiny panels and action plan reviews.

Under the early advice initiative, where possible, every rape case capable of being built  is referred from the police to the CPS within 42 days, with a joint strategy meeting taking place between officer and a named prosecutor; the officer bringing their expertise in investigation and the prosecutor bringing their expertise in relation to what is required to build a case for court. Deadlines for submission are set and both police and CPS took responsibility for the governance and compliance with completion of those plans and submission of the file.

The NFA scrutiny panels bring together senior officers, CPS managers and victim representatives to analyse randomly selected cases to ensure the police decision to NFA was correct. We have seen a number of cases previously NFA’d that were capable of being built, which have now come into the pilot. We have seen assertions that the problem with rape cases progressing through the CJS is that CPS does not charge cases. This demonstrates that we absolutely do, where it is clear that the case can be built.

As part of the action plan review, we ensure that all action plans set by the CPS prosecutor for police completion are proportionate to aid case progression and minimise delay.

The case progression clinics which have operated on a monthly basis in Sussex have always been oversubscribed with cases by officers who wish to obtain guidance on a specific point relevant to their case. Very positive feedback has been given on how they have “unblocked” a given issue and helped decide on next steps in cases.

While talking about the details of the pilot provides useful insights, I want to talk about a case dealt with under the pilot which really demonstrates the impact of this work:

A rape allegation was reported to police on 11 November 2020.

Police prioritised the investigative actions by tracking the case and ensuring resource was being made available.

Following investigation, the case was submitted to CPS on 7 December 2020. A joint strategy discussion took place between the Officer in the Case and the allocated reviewing lawyer on 17 December 2020.

Following the agreed plan, the investigator was able to concentrate on enquiries to strengthen the case. Once those further agreed actions were completed, the case was resubmitted for a charging decision with the CPS lawyer able to agree a charge for rape when the case was submitted under the Full Code Test on 6 May 2021, meaning this took just less than six months from the reporting of the offence to charge.

Historically, it has taken on average 18 months to investigate a rape case, so this pilot has significantly reduced the time under investigation. We know that the faster we can collectively investigate and consider cases the more we can maintain rape survivors’ support. This is a real example of a collaborative prosecution team, one that is focused on obtaining key evidence that can be presented at its best before a court of law. The suspect is currently on bail, having pleaded not guilty, and is awaiting trial.

By virtue of our close partnership with our police colleagues, in the 12 months to 31 October 2021 the South East RASSO team has seen an 88% rise in rape referrals compared to the previous 12-month period. There has also been a 31% rise in rape cases charged compared to the previous 12 months.

As well as the successful results from this pilot in terms of improving timeliness in cases being referred to the CPS and cases charged in the South East, it has also provided invaluable learning to support similar changes in other regions. I am very grateful for the commitment of all three forces involved – thank you.


On the horizon

I now want to turn to issues on the horizon that the police and CPS will need to collaborate on. It would be remiss of me not to mention the Police, Crime, Sentencing and Courts Bill, which is currently nearing the end of its passage through parliament. Among the many new provisions in the Bill that will impact both the CPS and police are the new measures on responding to protests. With the Bill not yet finalised, it is too early to understand the full impact, but we will need to respond quickly and ensure we are using the most appropriate charges to respond to different types of protests. I am confident this will be managed effectively by the joint leads for protests; for the CPS, Kris Venkatasami and for the NPCC, Chris Noble.

Over the past few years there has been a rise in protests, sparked by individual incidents and wider societal issues. I noted earlier that the police charge the vast majority of cases and this applies to the policing of protest cases, where the majority of cases are summary only offences. Our leads have been working closely here, and we have provided clarification on what can be charged by the police and what needs to be charged by the CPS – and this is another area where early advice can be useful as some of these cases are particularly complex. We know this area of work can be challenging – the case of Zeigler demonstrated the need for balance, particularly where the activity is largely peaceful.  Where more organised criminal activity is suspected, it is important to ensure that the background is fully understood in order to charge the right level of seriousness and comply with our disclosure obligations. There is real public concern about these cases and the issues surrounding them, and we need to get our decision-making right from the outset.

I fully appreciate that responding to protests, particularly during the pandemic, has been a challenge for the police, and I pay tribute to how frontline colleagues have been working together on these cases.

Closing

Although 45 minutes seems like a long time for a speech – and I hope it hasn’t felt too long from your perspective, particularly as we are at the end of two busy days – I have not been able to cover all the issues we are jointly facing. There are other deeply complex and important areas of crime where we must work together to bring criminals to justice, support victims and build public confidence.

Rather than shoehorn them into this speech, where I would not be able to go into the level of detail they deserve, I want to put out a call to action. We have a number of CPS staff and many more colleagues from policing in attendance – it is important that we improve engagement at all levels to make sure we are discussing the issues of the day as well as those on the horizon, so that intelligence can be shared, issues escalated up the command chain where necessary, and that joint solutions to drive change can be developed.

I will finish where I started. By reiterating something that it can be easy for all of us, myself included, to forget in the day-to-day operational challenges we face: that we – police and prosecutors – all want the same thing. Criminals brought to justice, victims and witnesses treated well, the public made safer. We play different roles in achieving that, but we are both striving for justice.

Indeed, the Royal Commission which led to the creation of the CPS four decades ago said that between the police and prosecutors there should be "... unity of purpose but independence of responsibility...".

A lot has changed since that report in 1982, but we still have independent responsibilities, and we still have a unified purpose.

Thank you, and I look forward to hearing your questions.

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