Advanced Search

Challenge and opportunity - DPP speech to the Whitehall and Industry Group Lawyers Network

15/06/2011

Thank you for inviting me to speak to you this evening. I would like to tell you something about the challenges the Crown Prosecution Service is currently facing and what we are doing about them.

The CPS was set up in 1986 under the Prosecution of Offences Act 1985 as an independent authority to prosecute criminal cases investigated by the police in England and Wales.

In undertaking this role, the CPS:

  • advises the police during the early stages of investigations;
  • determines the appropriate charges in more serious or complex cases;
  • keeps all cases under continuous review and decides which cases should be prosecuted;
  • prepares cases for prosecution and prosecutes cases using in-house advocates or self-employed advocates to present cases in court, and
  • provides information and assistance to victims and prosecution witnesses.

 

The way in which the CPS undertakes its role is governed by two key documents: the Code for Crown Prosecutors; and most recently, Core Quality Standards (CQS).

The Code sets out the criteria the CPS applies when considering whether a prosecution should take place or not. The criteria are:

  • whether there is enough evidence to provide a realistic prospect of conviction against each defendant on each charge; and, if so,
  • whether a prosecution is needed in the public interest.

Let me give you two recent examples of the Code in operation: (1) in the case concerning the death of Mr. Ian Tomlinson, the first limb of the Code test was in play (in 2010 the CPS considered that it was not satisfied, in 2011 after the Inquest, we considered that it was satisfied); (2) as for the public interest limb, a good example of the approach to the exercise of discretion is perhaps the guidelines that I drew up indicating the factors that prosecutors would take into account in deciding whether individuals should be charged in cases of assisted suicide - a topical issue given the broadcast of Terry Pratchett's documentary "Choosing to Die" on BBC2 on Monday.

The second key document governing the way in which the CPS carries out its role is a document called CPS "Core Quality Standards". This sets out the standard of service that the public are entitled to expect from those who prosecute on their behalf and applies to all those who deliver the prosecution service.

Let me deal briefly with structure. The CPS is divided into 13 geographical Areas across England and Wales. Each Area is led by a Chief Crown Prosecutor (CCP) who is responsible for the provision of a high quality prosecution service in his or her Area.

Two specialist casework groups - Central Fraud Group and Serious Crime Group - deal with serious organised crime, terrorism, fraud and other specialised and sensitive cases.

And some numbers. The CPS currently employs 7745 staff and this year we have a budget of £684m. In 2010/11 we prosecuted nearly one million defendants in court. Approximately 841,000 in the Magistrates' Courts and approaching 117,000 in the Crown Courts. This last figure rises to over 150,000 when committals for sentence and appeals are added. With that brief introduction and overview, I will now turn to the spending review.

Spending Review

There is no doubt that the spending review presents the CPS with one of the biggest challenges in its 26 year history. We are required to make savings of 25 per cent over four years, starting this April and taking us through to 2015. Although this figure is not dissimilar to the savings required by our key criminal justice partners in the Home Office and Ministry of Justice, it is unprecedented and it is a very real challenge for an organization that does not control input (i.e. the volume of cases presented for consideration) and that does not have major projects that can be stood down.

But, paradoxically, it is the very scale of the challenge facing the CPS and its criminal justice partners that presents the best opportunity in a generation for reform. Given the scale of the savings that have to be made, tinkering with the (very many) long standing inefficiencies in the criminal justice system (CJS) simply will not do. Something far more fundamental is required. And for that reason, we are taking the opportunity to step back and re-evaluate how justice is actually delivered.

Within the CPS itself, we have already taken decisive action. We have already reduced the size of our Headquarters significantly. We have also renegotiated commercial contracts; introduced new procurement processes; imposed a recruitment freeze; merged with the Revenue and Customs Prosecution Office; relocated our Headquarters to less expensive premises; and reorganized our national structure by aggregating 42 Areas down to 13 to realize economies of scale and prepare us to take full advantage of developments in technology and proposals for better case administration.

The same decisive action is now needed across the CJS. But before I elaborate on that theme, let me be clear about one fundamental matter. Improvements and cost reductions in the CPS and the CJS cannot come at the expense of quality or the proper application of justice.

The CPS must prosecute criminal conduct in the most effective way. And in a way that is transparent, so that the public understand why decisions are taken. We must respect and protect the rights of victims and witnesses. And to ensure that justice is done, we must also respect and protect the rights of suspects and of defendants, particularly their rights to a fair trial.

We must also redouble our commitment to openness and transparency. This is fully aligned with our efforts to drive up the quality of the service we provide and my intention to take the CPS to a new level of accountability.

As a starting point we have established what "good" looks like in each part of the CPS' business by introducing CPS Core Quality Standards (mentioned earlier). These standards clearly set out what the public can expect from their prosecution service; and they are important to victims, witnesses, suspects and defendants, all of whom depend on prosecutors to carry out their duties to a high standard. It is also vital that the courts, police, and other criminal justice agencies understand the standards because they rely on prosecutors to deliver an efficient and effective service.

The public and those who superintend, audit and inspect prosecutors will want reassurance that the standards represent demanding and efficient means of delivering an important public service and will want to hold prosecutors to account for their performance against the standards we have set.

All our casework has to meet our core quality standards and we sample more than 20,000 case files each year to make sure this is happening and, if not, we take corrective action.

Having established what good looks like, it is important that we are transparent. To that end, I have encouraged the announcement of charging decisions, particularly where there has been a lot of media coverage of an incident, so that people are aware someone has been charged. Recent announcements of decisions to charge include the Stephen Lawrence case, the Ian Tomlinson case and the cases in which MPs and members of the House of Lords were charged with fiddling their expenses.

We also set out the reasons for any significant decision not to charge someone with a criminal offence - for example the tragic cases involving the parents of a young man called Daniel James who travelled to Dignitas in Switzerland to commit suicide. All these decisions are available on our website.

In addition our advocates routinely give statements at the end of cases; they appear live to camera outside the court; we issue press releases, take part in post-trial press conferences and give interviews to the media explaining the role of the CPS in a case and what we have done, for example, to help victims and witnesses give their best possible evidence.

We are also making increasing use of digital media. We use Twitter and our News Brief on a daily basis, which can be accessed via our CPS homepage. So, for example, where we have an announcement to make, we will put it out on Twitter with a link to the press release or statement on our website or News Brief.

The public can subscribe to our account on Twitter we currently have in excess of 2,000 followers and this is now one of the best ways to keep in touch with the latest news on high profile cases and policy developments. And we are finding the information we are issuing through digital media is being passed on - "re-tweeted" - to thousands more people, so we are reaching wider audiences, which is a good thing.

Against that background, let me turn in more detail to the reforms we are pushing for in the CJS.

I will deal with those reforms under three broad theses: (1) what goes into the criminal justice system (2) how what goes into the system is dispatched and (3) how we manage the process.

What goes into the criminal justice system?

Charging

The CPS plays a crucial "gatekeeper" role in this regard by virtue of its responsibilities in terms of charging, continuing review of cases against the evidential and public interest criteria set out in the Code for Crown Prosecutors, and its power to divert certain cases away from the courts.

Since 2006 the CPS has had responsibility for determining the charge in cases other than for minor offences. This has meant the CPS making the charging decision in approximately one third of all cases, with the police responsible for charging the remaining two thirds. This has resulted in a number of benefits, not least:

  • Contrary to some suggestions, CPS charging does not mean a reduction in the number of suspects charged, but it has improved the conviction rate: in 2005/6 the CPS charged 274,000 suspects, that figure rose to 332,935 in 2010/11, and the conviction rate is now as high as 78.6 per cent.
  • Equally positively, the number of cases discontinued at court has reduced considerably - before Statutory Charging was introduced, discontinuance in the magistrates court was 36 per cent; now it is 15.1 per cent.

 

In addition to the numbers, the CPS has been working hard with the police to improve the quality of cases we receive from them. Today we provide timely and quality advice by telephone through our Daytime Direct Service and, where appropriate, offer face-to-face and written advice for more complex matters. Joint delivery standards have been developed and we have worked collaboratively in the development of appropriately trained police Evidence Review Officers.

These arrangements provide greater economies of scale; ensuring quick and easy access to a prosecutor for police officers; a quick turnaround and a decision in a short a time as possible and more efficient and effective use of CPS Prosecutor resource. Latest data shows that 71 per cent of calls to the daytime scheme are answered within 3 minutes.

Between April and October 2010 CPS and ACPO conducted pilots to test and evaluate the return of additional offences to the police to charge under the Statutory Charging arrangements. Rollout of these revised Charging arrangements is on schedule to be completed by the end of this month.

The CPS have agreed with ACPO that a further 12 month pilot will be undertaken to test the proposal for the police to charge in Theft (shoplifting) cases where a not guilty plea is anticipated. (Under the present arrangements the police can charge in such cases only when a guilty plea is anticipated).

By the end of this month when the rollout of the 4th Edition of the DPP's Guidance is completed, police charges will account for around 72 per cent of all charging decisions. It is anticipated that the piloting of further offences could take that figure close to 80 per cent. The CPS would then retain the remaining 20 per cent of cases which are most complex and serious.

Out of Court Disposals

That leads me to another important control on cases coming into the courts: the proportionate use of Out of Court Disposals as an effective means to filter out cases that do not need to go to court.

Since 2003, the CPS has been able to recommend that a suspect is conditionally cautioned in appropriate circumstances, rather than charged. A conditional caution suspends prosecution pending the successful completion of the conditions within a specified timeframe.

Whilst I appreciate the concerns some may have over out of court disposals, some of which were re-iterated recently in a Criminal Justice Joint Inspection Report, my own view is that Out of Court disposals for low level, low risk and usually first time offenders make sense, satisfy the needs of justice and ensure that court time is freed up for more serious and complicated cases.

That said, I advocate and would support a coherent, supervised and transparent scheme for out of court disposals.

At the moment, different disposals are available to different agencies for different offences - and that can create problems.

Some of those problems can easily be resolved. I have issued guidelines that make it clear that a conditional caution is only available for low level offences - so, for example, it is not available for any offence of violence other than common assault, it is not available for burglary, knife crime, domestic violence or rape.

And there is no reason why a scheme for out of court disposals cannot be transparent. Every quarter, we publish monthly figures on our website, setting out how many conditional cautions have been issued, for what offences and indicating the number of cases where conditions have not been met.

Currently, we are looking to create a clearer and more coherent national framework for the deployment of Out of Court Disposals. The Ministry of Justice Green Paper: Breaking the Cycle published last year sets out the need for such a framework and I look forward to seeing the Government's response to the consultation which is expected very soon.

How what goes into the system is dispatched

Let me start with a simple proposition: Too much effort and expenditure is being consumed by cases that do not, or should not require it.

Take the example of late guilty pleas.

The latest CPS figures show the guilty plea rate in the magistrates' court in the twelve months to March 2011 was approximately 68 per cent: and in the crown court 72 per cent. Those percentages reflect a long term trend and I do not think it is about to change.

The average cost to the CPS to prepare a case for guilty plea in the Magistrates' Court is around £160. The average cost to prepare a trial is around £850. In the Crown Court the average figures are £1500 for a guilty plea and £3500 for a trial. And, of course, there is the time factor: it takes a good deal longer and requires much greater resource to prepare a case for trial than it does to prepare a case for a plea.

Whether and when a defendant enters a guilty plea makes a material difference to the amount of money spent.

The problem we have is that in the 12 months to March 2011 of the 176, 292 cases listed for trial in the magistrates' courts, 69, 081 of them 'cracked' (i.e. the defendant changed his or her plea from not guilty to guilty either on the day of trial, or shortly before, or for some other reason a plea was accepted). That's roughly 40 per cent of all the cases that had been listed for trial.

In the same twelve month period, of the 43, 720 cases listed for trial in the Crown Court, 18, 418 of them 'cracked'. That's 42 per cent of all the cases that had been listed for trial.

Therefore, significant cost is being wasted in getting on for half of all the cases listed for trial in the magistrates' and Crown Courts. The detrimental effects are not just felt by the CPS but by the courts, police and defence. And we should not forget the 'cost' to victims and witnesses measured in their frustration and disappointment on turning up at court - often anxious and nervous - only to be told to go home.

To meet this challenge, the CPS has been working with the judiciary to establish a number of early guilty plea schemes.

These make use of the well established principle that those defendants who plead guilty early are eligible for a discount in sentence. Those who withhold plea and change their position later are entitled to do so but they should receive less credit than those who accept what they have done from the outset. Early guilty plea schemes add process to this approach and are intended to encourage effective and prompt disposal of Crown Court Guilty pleas. The schemes require the CPS and defence lawyers to identify at an early stage cases destined for the Crown Court that are likely to result in such a plea. These cases are then fast tracked to a bespoke hearing, whereby plea and sentence will be dealt with at one hearing, with the aim of avoiding adjournments and late pleas.

The scheme is currently being piloted at Reading, Winchester and Bristol Crown Courts. Early indications are that the scheme is delivering the benefits anticipated. Cases are being heard more quickly allowing early notification to victims and witnesses that their attendance to give evidence is not required thereby reducing anxiety for victims in particular, whilst continuing to deliver a fair and timely procedure for those accused of crimes.

In my view, there is no reason why guilty plea cases cannot be dealt with at their first hearing, without compromising the right to a fair trial. What is required is better preparation. The first court appearance should be the end of the preparation process and dialogue between the parties, not the beginning, as is often the case at the moment.

I would like to see the pilot early guilty plea schemes rolled out across England and Wales as soon as possible.

Managing the process

Believe it or not, the CJS is still a paper based system. Paper files are prepare by the police, we the CPS work on hard copies, we print off millions of pages of paper for defence lawyers, who then work on their own hard copies, and everything is then prepared in paper bundles for court, with reports from bodies such as the probation service also arriving in paper form. And collectively we use vans, lorries, bikes and people to move this forest around the country on a daily basis.

This has to change. It is high time for the electronic case file to become the main currency in the criminal justice system. What I would like to see it this.

A prosecutor comes to court carrying only a laptop no case papers just a laptop that has all the relevant information. He/she opens the laptop and begins to prosecute the list. No papers are passed up to the Bench; nor to the defence: as both have already received all relevant material electronically and are working from their own computers. At the end of the court 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 so records are up to date and action taken.

Can we get there? Or more importantly in the current climate, can we get there quickly enough to meet the challenge of our spending review settlement? I think so.

Recently the Chief Crown Prosecutor for Wessex prosecuted the first ever paperless Crown Court case at Winchester. He and the Judge worked entirely from an electronic file, which had been served digitally on the court, using laptop devices. The Probation Service was provided with a pre-sentence report pack electronically, and defence counsel was sent a case file by secure e-mail.

After the case concluded the results were immediately sent digitally back to the CPS office, Witness Care Unit and the police officer in the case.

This is not an isolated example.

The North Liverpool Community Justice Centre has embraced digital working and has successfully completed two days work where the prosecutor and Judge conducted the court list via electronic tablet devices. In all 36 cases were dealt with included bail and remand hearings, as well as two trials. The Judge, who had indicated that he was "by no means an IT expert", commented that "the possibilities are endless". The defence solicitor involved in one of the cases agreed, praising the approach on the basis that the presentation of the case was considerably enhanced.

There are other examples.

In Dyfed Powys, one of our prosecutors is regularly prosecuting cases in the Magistrates' Court from a laptop, and advanced information is now being served on the court electronically. Our Central Fraud Group in Manchester is well on the way to digitalizing all their cases. It is our intention that service of all material by disc should become the norm.

These examples give us confidence and we, the CPS, are now committed to making our primary work environment digital by April 2012.

Crucially for such a project, ministers have aligned themselves to this agenda and have set a parallel ambition for all criminal justice agencies to be working digitally by April 2012.

The path has been set.

Concluding remarks

The challenges ahead are clear.

The Spending Review for the CPS and other CJS agencies requires us to re-examine our approach to the delivery of justice. We need to stand back and consider if we have got things right, and if we haven't, we need to change things, quickly.

This is both a challenge and an opportunity.

Our response must be clear, coherent and consistent. And it is essential that we work closely with our criminal justice partners, at all levels, so that we can all live within our Spending Review settlements, by acting smartly and co-operatively. But at the same time we continue to drive up quality standards.

The planning we have done and the initiatives we are now undertaking with our key partners will equip us to meet our objectives.

I am determined to ensure that the CPS a streamlined, high-performing, confident organization based on a public service ethos that is focused on providing a consistent, high quality and efficient service.

Thank you again for inviting me to address you.

Keir Starmer QC

Director of Public Prosecutions