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Criminal Justice: System or Service’: Keir Starmer QC, DPP


This month (November 4, 2009) Keir Starmer QC, DPP, was keynote speaker at The James Smart Memorial Lecture in London.

The annual Lecture is organised by the City of London Police and is held in memory of the first Chief Constable of the City of Glasgow Police Force.

The following is a transcript of the speech:

Good evening Ladies and Gentlemen and I want first to say how delighted I am to be here this evening to present to you what I believe is the 38th annual James Smart Lecture.

As I imagine all of you will know, he was one of the founding fathers of the Scottish Police Service and he served as the first Chief Constable of Glasgow. Whilst head of that great City's Police Force, he oversaw many changes, particularly in the area of crime detection.  I am sure that we all now recognise the value of the extensive use of photography which James Smart pioneered, as well as his introduction of the use of the electric telegraph. Although I am pleased to report that the use of technology in policing and criminal justice has moved on somewhat, nonetheless James Smart's forward thinking and legacy remain remarkable.

It is a testament to his achievements that a Lecture series in his name has continued since 1972. And I am very honoured to join the very long and distinguished list of speakers who have presented this lecture in his memory.

In recent years, audiences have heard from Sir Hugh Orde on the challenges in policing Northern Ireland; from Cathy Jamieson on reforming criminal justice in Scotland; and from Lord Robertson on the international dimensions of law and order. I also note that further back in time this lecture has been presented by Dame Stella Rimington and Lord Mackay of Clashfern, to name but two. He appears to have been so popular as to be invited back a second time - and I shall do my best to generate the same enthusiasm that led to that second invitation this evening.

I have not had the opportunity to read through all of my predecessors' addresses but their topics alone disclose the importance that so many have attached to this evening in previous years. And I hope that my lecture will be in keeping with the sound traditions started by James Smart and carried on by those who have stood here before me.

And so to this evening: "Criminal Justice - a System or a Service?"

When considering that title, I paused to reflect on my first year and 4 days as Director of Public Prosecutions for England and Wales. On a number of occasions I have been asked why I applied to become Director given my previous career at the self-employed Bar.

My reasons were simple.

First, it was clear to me that the CPS had built a solid platform for delivering a good and ever-improving prosecution service.

Secondly, the direction of travel which had been set for the CPS and which it had set for itself was, to my mind, clearly right. Continuing down that path could only lead to a more integrated public prosecution service which would be of benefit not only to the criminal justice system but to society as a whole.

And thirdly, it was plain that the CPS was staffed by prosecutors, caseworkers and professional administrators with the highest levels of integrity who were committed to the principles of fairness, independence and objectivity: the hallmarks of a public prosecution service in which our communities may have not only confidence but also pride.

In the 12 months since my appointment, having made 62 visits throughout England and Wales, taking in every CPS Area and Headquarters Division and the Revenue and Customs Prosecutions Office, and having met personally over 2,200 staff, I have seen nothing to dissuade me from my view that I am exceptionally fortunate to head this service.

And I am certain that any Chief Officer of Police or senior manager of Her Majesty's Court Service or any other leader of any criminal justice agency would broadly echo my words: we are all fortunate to work with people who are motivated by the concept of public service and inspired by the chance to make a difference to people's lives in terms of criminal justice.

And therein lies one of the main themes for my address this evening. We are all conversant with the phrase "criminal justice system", and indeed, most of us work in it every day. We are all proud of the organisations we belong to and yet we all recognise that without others in different parts of the criminal justice system our efforts would fall away and the ultimate prize of justice would remain elusive.

The history of criminal justice in England and Wales, Scotland, and Northern Ireland has seen the development of separate and distinct criminal justice agencies over time.

In England and Wales, we have long had the police and the courts charged with protecting members of the public and dealing with offenders and their offending in the most appropriate way.

Of course, in terms of the development of our criminal justice system, the public prosecutor is a relatively new interloper. I am privileged to be the 6th Director of Public Prosecutions in what I term the new era since the creation of the Crown Prosecution Service in 1986 and the 14th Director since Sir John Maule QC accepted the invitation of the then Home Secretary to become the first DPP in 1880, ten years after the death of James Smart.

And a passing look at how the criminal justice systems of Scotland and Northern Ireland have developed will show similar piecemeal development.

The Office of the Director of Public Prosecutions for Northern Ireland was created in the early 1970s with Sir Barry Shaw as its first Director. And further transformation took place in 2005 with the creation of the Public Prosecution Service for Northern Ireland with Sir Alasdair Fraser as its Director.

In Scotland, however, the office Fiscal has survived a longer test of time. Broadly responsible for prosecutions in the Sheriff's Court since 1701, the role of the Fiscal was reinforced in 1867 with the passing of the Sheriff Courts (Scotland) Act which gave procurators fiscal full responsibility in law for the prosecution of all criminal acts in Scotland.

And so even if one can reconcile the different evolutionary time frames of separate parts of the criminal justice system throughout the United Kingdom, the position can appear inconsistent through an analysis of the different responsibilities that these three sets of prosecutors discharge.

All suspicious, sudden and accidental deaths must be reported to the procurator fiscal; the fiscal has the power to instruct the local police to investigate.

Not so in England and Wales where the former would be noted with concern but referred to the police and the latter would likely be seen as an unhelpful intrusion into the operational independence of the Chief Constable.

There are other examples of difference but my point is a simple one: not only has the creation and development of the various criminal justice agencies been piecemeal; they have ended up with different powers both in relation to the delivery of criminal justice itself and in respect of other agencies in the system.

With separate agencies within one system often come separate approaches, separate visions and dare I say separate targets and measures of success. In the past, the various criminal justice organisations have, on occasion, given priority to targets that focused on delivering their part of the system but which were not always mutually supportive or designed to achieve a broader objective. I know that more recently, much careful and diligent work has been conducted to overcome these obstacles, and align criminal justice targets towards the pursuit of increasing the overall number of offences brought to justice, and I commend highly that joined-up approach.

But let me provide you with one example of perhaps different approaches. Very recently, the Court of Appeal brought a good dose of common sense to the policy behind the retention of a person's criminal record and stated that they should be retained if the police consider it necessary to do so. Those of us who practice daily in the courts know the importance of a full set of antecedents when presenting the court with a comprehensive history of a convicted defendant's criminal behaviour.

In delivering the judgment in that case, it was said that:

"[The police's] function was to obtain the best evidence that they could in relation to criminal offences, and it was then for others to use that evidence in seeking to secure convictions."

Whilst I again applaud the Court of Appeal for overturning the decision of the Information Commissioner, in my judgment, even a potential suggestion that securing the conviction of offenders is not part of the function of the police shows the extent to which the golden thread that binds criminal justice agencies to a common purpose can at times be dangerously weak. In my view, a stronger collective recognition of this thread is of crucial importance for us all.

I have, I hope, demonstrated that I consider the fragmented development of the various component parts and the ease with which different indicators of success have been inadvertently created to lie at the heart of the current system. I also firmly believe that we should be working to change and improve that system.

Now of course when the notion of change is aired and the examples that I have given this evening are cited, one is often met by a single word: independence.

The police are independent; the courts are independent; the judges are independent; the prosecutor is independent. It is a word that tends to be used as the first and last resort of those who are used to the status quo, and who do not see any compelling reason nor any advantage to consider change.

The separate agencies within the criminal justice system have for too long taken refuge in their independence.

But let me simply put the question: in what respect are all these fundamental sections of the criminal justice system independent?

If we concede that the concept of independence has served our communities well these past centuries since the individual building blocks of the criminal justice system were created, we would do well to unstitch the assumption and identify what we actually mean.

What do we think we are independent in and independent from?

Is it around independence from the Government; from politics generally; from political pressure; from inappropriate considerations however they may be defined; is it independence from other parts of the criminal justice system?

It seems to me that if progress is to be made, we need to be absolutely clear about when we use the concept of independence.

Let me offer you my view: independence is around the circumstances and the way in which we take our decisions. It is about ensuring that the decisions we are charged with taking on behalf of the communities we serve are our decisions; and that they are taken in accordance with and within the lawful authority of the criteria laid down for us.

So if a police officer is lawfully able to decide between a caution or a charge, let him do so in accordance with any criteria laid down. And let no-one seek to interfere with the lawful and reasonable exercise of his discretion.

If the public prosecutor is lawfully able to decide not to prosecute having considered all the appropriate public interest factors, let him do so in accordance with any criteria laid down. And let no-one seek to interfere with the lawful and reasonable exercise of his discretion.

And if the court is lawfully able to determine guilt or innocence and lawfully able to sentence guilty offenders, let them do so in accordance with any criteria laid down. And let no-one seek to interfere with the lawful and reasonable exercise of its discretion.

These are the immutable characteristics of independence: the lawful and reasonable exercise of the discretions that are given to the criminal justice players. It is these characteristics that we should guard against those who would seek to influence, persuade and deflect the decision-takers from their duty - be they in Government; in our society; or indeed in each other.

For the criminal justice system is a complicated network of checks and balances and even improper influence from other parts of that system would lead to bad decisions and poor justice.

Pausing there for a moment, I am conscious that I have drawn a picture of a criminal justice system that is disconnected and with a broad range of distinct powers - which can sometimes perhaps be seen as oblivious to the needs not only of other parts of that system but also, dare I say, of our communities.

But I have done so deliberately and illustratively. In polarising the position - and explaining why on occasion we may have reached there - I want immediately to return to my theme this evening: a system not a service.

It is plain to see from my first year in office there is much to be proud of in those who deliver modern criminal justice in the police, prosecution service and the courts. There is much committed and collaborative work going on in pursuit of achieving the overarching Public Service Agreements 23, 24 and 25.

It is also evident, however, that the individual component parts of the larger criminal justice system have focused on their own development as a means of assessing whether they are delivering against their core objectives.

All the hallmarks of the individual agencies that deliver their aspects of criminal justice form exactly that - a system. They form an often well-oiled machine that processes case after case by reference to their own requirements and perceptions. And, some might argue, on occasion with little regard for the consequences they cause others.

If ever there were an appropriate moment for the proverb, now may be it: the whole is greater than the sum of its parts.

I want therefore to concentrate on the proposition this evening that for the various criminal justice agencies to focus entirely on their own objectives and achievements obscures really the point of the exercise, the reason why they do the professional job that they do and why I do mine and many of you do yours.

What we all do is to deliver our part of the system: what perhaps we ought to think about doing is delivering collectively a service.

And so that begs the first and obvious question: for whom and to whom should we deliver a service? Is it the victim? Is it the defendant? Is it our communities? Is it to some ethereal notion of justice?

It is of course to all these and I would go so far as to adopt with as much humility as possible probably the most famous and most often quoted legal dictum. In acknowledging Lord Atkins' contribution to the civil law, I want to borrow the "neighbourhood" principle and apply it to the criminal law: it seems to be that we in the criminal justice system provide a service to all those "who are so closely and directly affected by [it] that [we] ought reasonably to have them in contemplation as being so affected when [we are] directing [our] minds to the acts or omissions that are called into question".

It is the victim; it is the defendant; it is our communities; it is justice itself.

These are the ones to whom we collectively owe our duty to deliver a criminal justice service.

We are tasked with delivering to them and on their behalf a high quality, consistent and coherent criminal justice service.

But what is that? What does it look like? How will we know when we have delivered it? Of course, these are the difficult questions and I do not for a moment pretend that I have all or even most of the answers. What I do know, however, is that we need to start by looking from the other end of the telescope when members of the public become victims, witnesses and defendants.

In many ways, the discrete way in which we align and operate our criminal justice agencies means that we can lose sight of the overall service that we should be seeking to deliver. Whether it be the frustrated victim trying to find out from one of several criminal justice sources the result of a case, or a witness waiting to be informed of the correct time to attend court, every day thousands come into contact with our system and are met with varying levels of service.

Where this service is delivered well, satisfaction and public confidence is rightly high. Where it is not, the implications are obvious.

So, how should we seek to deliver a more coherent and consistent service to those with whom we come into contact?

My starting point here requires me to return to independence. I have earlier set out my views on the acts and decisions that justifiably deserve the label of "independent". There is a corollary of course: all other aspects of the delivery of criminal justice do not need to be couched in the cloak of "independence". Beyond the decisions of the individual agencies themselves which are theirs and theirs alone, the administration of the delivery of criminal justice has to be a combined effort.

The truth is that independence is not the only consideration in progressing a case through its remand stages; nor is it the only consideration in taking a decision on when a case should be heard, or in creating a prosecution file.

All these are acts that support the delivery of criminal justice once the independent decisions of those involved in the process have been taken. Thereafter, it is my firm view that all of us engaged in delivering the criminal justice system should put to one side misplaced concepts of required independence and work together to deliver a process that is seamless from the viewpoint of those who come into contact with it.

Let me say immediately that I see encouraging signs in this direction of travel.

Local Criminal Justice Boards and Crime and Disorder Reduction Partnerships are a means of aligning and coordinating local agency work in order to improve the service for victims and witnesses.

There are increasingly strong links between the Courts Service and other criminal justice partners with a common aim of improving the quality of the service that we collectively deliver.

Our aim must surely be to provide all those affected by our decisions a single point of contact - wherever that may be - to a criminal justice service that recognises its true role in terms of protecting the public; supporting victims and witnesses; and delivering justice.

Those who come to that service - most often reluctantly and often traumatically - deserve not to endure the repetitive mantra of: sorry it's not me you need, it is them over there. Or sorry I don't deal with witness warnings. Or we are not responsible for cracked and ineffective trials.

And so let me turn to some examples.

Our criminal justice system relies entirely on those members of the public who are prepared to come forward to report crime and who are then prepared to support their police and prosecution services by giving evidence. Those of us who work day in day out in the criminal justice service can sometimes fail fully to appreciate the demands that we place on those who do not.

It is our duty to make sure that the process itself does not create barriers to the delivery of justice and I do wonder whether we have created a criminal justice service that recognises the absolute need for fair and supportive treatment of victims and witnesses.

Let me give you an example of the progress that we have made in one hugely important area of our work, where police and prosecution staff work together to improve the service we deliver to victims and witnesses.

We allocate a Witness Care Officer to each case who acts as a single point of contact for the victims and witnesses from first appearance to the end of the case. They keep victims and witnesses informed about the progress of the case at all stages of the court proceedings.

Where a defendant pleads not guilty, a Witness Care Officer notifies witnesses required to give live evidence of the date of the trial, within a strict time period of receiving this information from the prosecutor. The Witness Care Officer also offers all witnesses who are required to attend court a full needs assessment. This provides them with an opportunity to discuss their concerns about attending court, including, for example, help with childcare and transport issues. It also enables the Witness Care Officer to explore with the witness whether there is any intimidation or need for special measures to enable them to give their evidence effectively.

Witness Care Officers also make special arrangements for witnesses with disabilities, medical conditions or who require communication aides, such as an interpreter or intermediary. And where appropriate, they will refer witnesses to another agency such as a relevant support group which offers more specific, tailored, help.

Witness Care Officers seek to provide witnesses with an opportunity to visit the court before the trial date to help them to gain a better understanding of the court process and to make them feel more at ease on the day of trial. They also put witnesses in touch with the Witness Service, which will provide them with practical and emotional support in the lead-up to the trial, on the day of trial and in appropriate cases afterwards.

When a case is concluded a Witness Care Officer informs victims and witnesses of the outcome by their preferred means of contact within one working day of receiving the result from the court.

All this is highly encouraging.

And there is more. The essence of our approach to criminal justice has been fashioned on the doctrines of Hobbes, Locke and Rousseau. Since their day, it has generally been accepted that, for the common and collective good, individuals give up some of their personal rights in return for criminal justice, operated fairly under the rule of law.

It remains critical that the criminal law and its enforcement continue to retain the confidence and support of the communities in whose name the law is created, applied and administered.

Equally critically, therefore, it is essential that those of us engaged in delivering criminal justice stay in step with the views of the communities we serve.

Earlier this year, we launched a major new initiative: the Community Prosecutor. This brings together much of the good work which is already happening in our Areas together with new ideas about how modern prosecutors should engage with communities. It is an essential part of being a modern prosecution service.

The Community Prosecutor approach will strengthen our role and ensure that we are better able to play our full role in community engagement alongside the police, courts and other partners. The aim of the approach is to enable us to provide a more locally responsive service than we can at present and it will enhance our ability to respond to local needs and circumstances.

We are currently testing the approach in a number of pathfinder locations around the country.  Prosecution teams will be better informed about matters of local concern, have a better understanding of the communities they serve and will have stronger links with people from surrounding neighbourhoods.

Local people will see the information they provide being used more effectively to help tackle the offences which are of most concern to them.

This provides a real opportunity for the criminal justice agencies to work together: I know that there is nothing more perfectly designed to frustrate members of the public than to have three identically numbered buses arriving one after the other - or worse - at the same time. And so it is with criminal justice agencies. Identifying from the public what they want from criminal justice is absolutely right: but let us find out that information only once. There is no need for representatives of each agency to knock on the door of each neighbourhood household in order: one focal point is enough followed by clear lines via which that information can be shared.

This starts to realise the objective: that we combine our efforts to deliver a criminal justice service, where there is a single public facing approach which collects, retains and shares information between the various agencies, yet treats those who come into contact with it at a single point.

And here I will use another example. As I outlined in our document "The Public Prosecution Service - Setting the Standard", published earlier this year, it is high time for the electronic case file and electronic case management systems to become the main currency in the criminal justice service.  The electronic case file is the next logical progression in the achievement of this aim, and we are currently piloting this approach as local, collaborative projects agreed at Local Criminal Justice Board level. This is an important step and I am a firm believer that the whole of the criminal justice service should harness the opportunity afforded by information technology.

So in the provision of our service, no longer should our response be: it is not my role, you must speak to this other department; in future, we should be hearing: leave it with me, I shall sort it out for you.  These are the practical signs of what it means to deliver a service and these are the measures by which we will be and should be judged. And we should strive for excellence every time.

However, in order properly to be measured by those who we serve, it is essential that we provide them with the tools to know what we do in their name. This applies to all of us engaged in the delivery of criminal justice. It is hollow to offer up promises of listening to local concerns if we do not let the public know what we do; how we do it; and what options are open to them to let us know when we do not perform to the levels that we promise.

This is new and exciting territory and it is the first step in cementing the bond that must exist between all of us delivering a public service and the very public whom that service is designed to support.

For the public prosecutor, this takes us into the territory of Core Quality Standards which will be launched later this year.

Core Quality Standards lie at the heart of ensuring that excellence is delivered as the norm throughout the prosecution service. The Standards will lay down what the public are entitled to expect from those who prosecute on their behalf in terms of quality and delivery. They will cover every major aspect of our work: from protecting the public to advising the investigator; through defining every aspect of the prosecutor's role in court, to supporting victims and witnesses. Everything we do that is important and of public interest will be covered.

The Core Quality Standards will be supported by a set of Minimum Service Delivery Requirements which will run throughout the prosecution service. They will underpin each quality standard so that everyone is clear about what is expected. It will be against these standards and delivery requirements that the public will be able to assess our success. We need to be a prosecution service which is confident to be judged by its results, with a commitment to excellence at its core.

And another core commitment is to equality and diversity. We have a pivotal role to play in ensuring that all our decisions and those of others in the criminal justice service are taken without bias. There is no room for a criminal justice service that favours, or is thought to favour, one section of our community over another, neither is there is any room for a service that acts, or is thought to act, in a prejudicial way against any particular group. Equality before the law lies at the heart of the criminal justice service and must remain so.

Visibility and accountability are no longer optional extras for the public prosecution service, they are our duty. We will be open and transparent with the media. We will tell people what we do, explain our decisions clearly, and wherever possible, we will be willing to give people as much information as we can about our decisions.

There is more to be done: in a seamless criminal justice service, all criminal justice agencies should adopt and abide by a common set of standards which we all agree and agree to adhere to. But that may yet be a little way off: nonetheless, it is always essential to have a goal to aspire to.

Everyone involved in delivering criminal justice needs to move forward together. And so I am pleased to start the discussion about how we are all going to deliver a criminal justice service of the highest quality so that we inspire confidence and trust in our communities. I encourage everyone here tonight to take part in that debate. Without the active involvement of those who deliver criminal justice and those who rely on it to keep them safe, we will not develop and improve.

A criminal justice service underpinned by the rule of law and respect for human rights is at the heart of modern democracy. All the criminal justice agencies working together in common cause, while defending their independence appropriately, are at the centre of such a service.