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Kalisher Lecture - Max Hill


Full text of the Director of Public Prosecution's Kalisher Lecture, 13 November 2018

I am very pleased to be here this evening, so thank you to everyone for coming. Having been Chairman of the Criminal Bar Association 2011-12, and Chairman of the Kalisher Trust since the beginning of 2014, both organisations do me a great honour in inviting me to share with you my first observations and reflections on becoming DPP, in which role I am yet to complete the first fortnight.

I can feel the weight of history on my shoulders, doubly so this evening, because of the many distinguished Kalisher lecturers of recent years - I am humbled to be in their company - and because of the history of the office of Director of Public Prosecutions, a role which has been continuously occupied since 1880, and in which I am the eighth occupant in the modern era since the creation of the CPS in 1986. With the work of the Kalisher Trust in mind, inspiring and enabling the criminal advocates of the future, let me just say that you never know where a career in the law may take you. I have loved almost every minute of my career over 31 years, I never for a moment dreamt that it might be possible for me to occupy the post of DPP, but I hope you may accept that my journey shows where hard work can lead.

I arrived at the new CPS offices in Petty France two weeks ago, knowing that there were obvious challenges to face, including of course the recent issues around the disclosure to the defence of material obtained during criminal investigations. I shall say more on this later. But first, may I tell you that arriving as an outsider at the start of this month, I have found within the CPS nationwide what you would wish for, namely dedicated, committed people determined to do right.

This is a large organisation, 6,000 staff in total, in which so much of our work is successful, whether or not those successes are amplified in public. I am working hard to make my way around the CPS at every level and in every place. I assure you that challenges will not be ignored. But I am mightily encouraged by so much of what I have seen so far, because it makes good our values: 1. Treat everyone with respect. 2. Be independent and fair. 3. Be honest and open. And 4. Behave professionally and strive for excellence. I have seen plenty of evidence of all four already. There may be problems, issues or challenges, but we will face them all and work together.

Tonight then, I want to talk about:

  • My aim as DPP to build confidence and trust in the CPS, and how I think we can do that; as well as
  • Some of the challenges the CPS faces and how we are tackling them.

I have been clear that my aim as DPP is to build public confidence and trust in the CPS. I am yet to speak to anyone who does not think that is vital.

But the picture here is not as bleak as some would have us believe. The Crime Survey of England and Wales asks people:

How confident are you that the Crown Prosecution Service is effective at prosecuting people accused of committing a crime?

And in the year ending March, 62% of respondents answered ‘very’ or ‘fairly’. That is a firm foundation, but I want to build on it. So how?

First, we need a clear understanding of the role of the CPS.

Confidence in anything first requires understanding - and I am not at all convinced that there is a clear understanding out there of the role of the CPS. In this room, maybe. In the few hundred metres outside this room at certain times of day, perhaps. Beyond that, outside of the criminal justice system, I don’t think so.

And in defining the role of the CPS I think it is useful to start with what we are not here to do – because that is where some of the confusion sits.

  • The CPS does not investigate crime.
  • The CPS does not choose which cases it considers.
  • And the role of the CPS is not to secure a conviction in every case.

That will come as a shock for some, but it has always been so.

The work of CPS prosecutors is governed by the Code for Crown Prosecutors.

It sets out a two-stage test for deciding whether to prosecute someone for a criminal offence. It is known as the Full Code Test and has 2 stages - (i) is there sufficient evidence to provide a realistic prospect of conviction; and (ii) is a prosecution required in the public interest.

You may have seen that the Code has recently been updated, including to incorporate disclosure more thoroughly - to which I will return later. The revised Code makes clear that the function of the CPS is to make assessments about whether it is appropriate to present charges for the criminal court to consider.

The CPS does not decide on guilt or innocence – that role is rightly reserved for the courts.

And this is why the evidential stage of the test used to decide whether to charge a suspect - is there a realistic prospect of conviction - is lower than the test used by a judge or jury to determine guilt – they must be sure that the defendant is guilty of the charge.

It is therefore not surprising that the CPS conviction rate is not 100% or anywhere near that figure. Nor would this be desirable or appropriate. For if we obtained convictions in all or almost all of our cases, this would signal an entirely risk-averse approach. And it is likely that in those circumstances we would be declining to prosecute persons who are guilty of offences. More importantly, we would risk usurping the role of the judge or jury, and failing to act in the interests of justice.

When looked at in this context, it is clear that a CPS decision to bring a case is not validated only by a jury or Bench deciding a defendant is proved guilty. And a not guilty verdict does not invalidate the decision to prosecute.

So an acquittal does not necessarily represent a failure for the CPS.

If you support our jury system – and for the avoidance of any doubt, I do – you surely would not argue that every acquittal means that the CPS has failed, or that the case should not have been started in the first place.

I have, of course, experienced this from both sides of the courtroom, as prosecutor and as defence barrister.

When defending, it is natural for an advocate in the glare of a courtroom to say to the jury this is a clear-cut, open and shut case, the only verdict is not guilty.

But any experienced defender knows that in the majority of cases we recognise in the run up to trial that it is what we call a jury case. Once the prosecutor has charged the case, it is right to put it to a jury or Bench to decide. In other words, we accept there is a case to answer.

However hard fought the trial may be, all participants accept that there is an issue to be tried and the CPS charging decision is justified by the evidence – whatever the eventual outcome at the end of the trial.

Once we understand that, we can understand what success means for the CPS.

533,161 cases prosecuted last year.

A very small number should not have been charged: in a small number mistakes were made.

But every mistake matters. The criminal justice system can have major impacts on everyone involved in a case – their interactions with us at the CPS can be some of the most sensitive and significant moments of their lives. In responding to a report from Her Majesty’s Crown Prosecution Service Inspectorate last week we made clear that we would be working hard to improve our interactions with victims of crime – ensuring we are empathetic as well as clear and helpful. Criminal trials almost always tell a human story. We are working harder than ever to remember the human element in our cases and in our decisions.

I fully accept that mistakes have happened, and that we will rightly be criticised and questioned when things do go wrong.

I am determined that we learn from those mistakes.

I am also determined that we remember the overall picture.

We should recognise that millions of people who have broken the law would not have been brought to book over the last 32 years without the work of the CPS. We should not lose sight of the enormous success that is represented day-in, day-out.

As I said earlier, it is not the role of the CPS to secure a conviction in every case. But we must also remember that without the CPS operating well, there would be no convictions.

  • No convictions of Diane Chilcott and Daniel Pudsey who arranged for underage girls to be trafficked for sexual exploitation. In this case last year the CPS used a trafficking offence in the Modern Slavery Act – often thought of as concerning travel into or out of the UK, but used here for travel within the country.
  • No convictions for the murder of 25-year-old London model Harry Uzoka who was stabbed in the heart at the start of this year.

And to use an example I was personally involved in:

  • No conviction of Anis Abid Sardar, a London cab driver who murdered a US soldier in Iraq – and was successfully prosecuted here despite the crime being committed overseas.

I will return to human trafficking and modern slavery, knife crime and terrorism a little later.

We can also look at other measures of success – for example:

  • The way in which the CPS keeps ahead of new crimes and new ways of committing crimes, ensuring the effective prosecution of, for example, modern slavery cases and terrorism cases. The organisation does this in the number of ways, including by working with our partners across government – and I was pleased to learn that the CPS supported the design and creation of the new National Economic Crime Centre launched last week.
  • As a resilient national service, prosecuting effectively, fairly and consistently, in conjunction with the Bar.
  • As a service which is representative of the society it serves, in terms of race, gender, disability and hopefully increasingly social mobility.
  • And as a good employer.
    • The CPS is recognised by Investors in People at their ‘Silver’ award, in the top 14% of organisations for its approach to managing and developing its workforce.
    • We are in the top 10 ‘Working Families’ employers; the only Government Department to be recognised at that level.
    • Just a few days ago, Business in the Community (BICT) named the CPS in the top 70 British organisations for Race.
    • And the CPS is recognised as a ‘Disability Confident Leader’ – assessed by the Business Disability Forum and awarded by DWP – for its work in employing people who live with a disability.
    • On social mobility, the CPS has a strong track record in employing high quality apprentices and I am proud to say that a new six-year solicitors apprenticeship has just started for 17 of our employees who didn’t have the chance earlier on in their lives to study law.

If understanding the role of the CPS is vital for building confidence, then so is understanding our status.

Our status as the principal independent prosecuting authority in England and Wales.

The CPS is superintended by the Attorney General and I have already started working with the Law Officers in a positive and constructive way.

I note that recently in the House of Commons the Attorney General gave his full support to protecting the ‘fierce independence of prosecutorial decisions’ when considering the superintendence of the CPS. We are discussing the detail of that superintendence role to ensure we have the most effective arrangements in place.

When it comes to casework, there is a tier of cases that require the AG’s consent. We will continue to provide an excellent service for those cases. The AGO also has an important role post-conviction with the unduly lenient sentence scheme, and we will continue to work closely with them on that.

But everything else is our responsibility. We don’t shirk from that responsibility and we will remain rigorously independent.

The role and status of the CPS brings me on to the next topic I want to cover – a key challenge that faces the CPS – the way in which the organisation’s work is a weather vane for society.

Our role – to consider the evidence and prosecute accordingly – and our independence – which means we will not be swayed by external considerations when making decisions – means we are demand-led.

We don’t have a say in cases we take on – we obey Parliament by prosecuting the crimes it passes into law, and we respond to changing trends in crime by dealing with every case that come to us from the police and elsewhere, the NCA for example. A recent suggestion that the CPS was not pursuing crimes against children because of resource pressures was entirely without foundation.

This has led to some significant additional workstreams.

  • I’ll use modern slavery as an example here.

Tackling human trafficking and modern slavery is a government priority – all parts of the system are focused on it and we are playing our part.

The number of charging decisions we have made for suspects linked to modern slavery has more than doubled in the last four years.

And while the numbers are still relatively small compared to our overall caseload – 355 cases were referred to us for a charging decision last year – the cases are growing in size and complexity. To help deal with them we have provided specialist training to prosecutors, and my predecessor also hosted an international summit earlier this year to improve the global response to these crimes.

  • Terrorism is another area where we have seen significant growth – and it is obviously vital that we keep pace with developments.

In the year ending June 2018, the number of people tried for terrorism-related offences had increased by 39% when compared with the previous year.

Prosecutions in the Counter Terrorism Division increased by 92% from 48 cases to 92 cases from 2011-12 to 2017-18. The division has doubled in size in recent years to reflect this increasing caseload.

And it’s not just the number of cases that is changing - terrorist behaviours and methods are also constantly evolving.

In the past we were mainly dealing with complex, coordinated plans for large-scale attacks – more recently we have of course seen the so-called ‘lone-actor' attacks – often undertaken by individuals or small groups acting alone, with lower-tech methods. And our team are also dealing with more cases involving young people.

The quantity and nature of digital material has exploded over recent years, which is an additional complexity. An average Counter Terrorism investigation recovers approximately 4 terabytes of material. The more significant investigations typically recover 10+ terabytes and a large investigation will be 20+ terabytes. And when a single terabyte is the equivalent to two solid weeks’ worth of DVD films, you can start to imagine what we are facing.

  • My final example is one of the most prominent in criminal justice today. No one will be unaware of the frequency of murders, particularly in London, often involving the use of knives and sometimes firearms - about 120 so far this year, with a new wave over the last week or so.

It is heartbreaking to see images of victims in the news. Young lives are being lost while bereaved families suffer the indescribable shock of such a sudden tragedy.

In London these cases are managed in the CPS by the Homicide Unit, a dedicated team of lawyers and paralegals, which has seen a substantial growth in caseload, increasing by 10-20% each quarter over the last four quarters. The rise in gang-related killings has brought more cases with all of the challenges of witness anonymity, CCTV, cell site, social media and gang affiliation evidence.

It is critical to public confidence that these cases are prosecuted well, and we needed to make sure that in the face of this increase, the Unit could continue to deliver the highest standards of professional care. To provide necessary resilience the Unit was expanded, seconding experienced lawyers from other CPS Areas to increase the number of Senior Crown Prosecutors from 10 to 14.

The relationship with police murder teams was strengthened through the use of early investigative advice. Officers now routinely speak to homicide prosecutors who provide clear advice at an early stage. Prosecutors also assisted in the delivery of disclosure training to police teams.

The high profile and often shocking nature of homicide cases means that many are conducted under the glare of publicity. This is unrelenting work and emotionally stressful for lawyers and paralegals but they never lose focus on the needs of bereaved families. Meetings are offered to families in every case and these are conducted with remarkable professionalism, compassion and empathy.

Changes such as these obviously have an impact on the resources we need. If terrorism rises and we are to continue to prosecute it effectively we will need to devote more resources to it.

At times, the CPS can manage that itself – if another crime type falls, resources can be diverted. And there has been an overall fall in the CPS’ caseload in recent years. It has tended, though, to be in less complex crime while the rises have been in more complex cases which need a greater investment in time.

This means there is no net fall in the workload – if anything there is, in fact, an increase as any fall in case numbers is more than offset by the increasing complexity.

Meanwhile we are also working closely with the police to improve the quality of case files, to provide early investigative advice – which in turn leads to stronger cases – and to improve the wider criminal justice system.

Investment elsewhere in the system also has an impact on the CPS – if, for example, the police can devote additional resource to investigating particular offences, the result will frequently be more cases coming through to the CPS, which we, in turn, need the resources to cope.

Another issue which has an impact on the work of the CPS is the increasingly international nature of crime, and therefore the necessity of working internationally to tackle and prosecute it.

Returning foreign fighters are just as much an issue in other parts of western Europe as they are here. Human trafficking cases by their very nature involve crimes committed in different jurisdictions.

In my time as Independent Reviewer of Terrorism Legislation I was struck by how important it is to think through common problems together.

The CPS does valuable and significant work overseas and I am committed to continuing, and further strengthening, that work.

This is particularly important in the context of Brexit and the impact it may have on the large number of our cases that have an international dimension.

If there is “no deal”, the most direct impact for us would be that we would no longer have access to the European Arrest Warrant (EAW), the European Investigation Order (EIO), and the Mutual Recognition of freezing and confiscation orders. Our current status as full members of Eurojust would also be lost, and our law enforcement colleagues would not enjoy the same level of immediate access to a range of investigative measures and intelligence sources.

If, however, a deal is reached, then a ‘withdrawal agreement’ is likely to allow us to continue to use almost all of these measures as we do now, until the end of 2020, while a new framework is developed.

We are preparing for both scenarios.

We are recruiting additional lawyers to our Extradition Unit on a short term basis in preparation for handling EAWs that are still live on 29 March, and the process that would immediately replace the EAW in the event of ‘no deal’.

We are also expanding our liaison magistrate presence in Europe to ensure that we can develop the relationships that will be necessary to support new arrangements. Our liaison magistrates build relationships in the countries in which they are based. By identifying the key local personnel, and gaining an understanding of their procedures, they are well-placed to clarify and support our own requests for mutual legal assistance and extradition, as well as those of the host country.

And we are developing training for our staff, and Counsel.

Whatever happens we will play our part in preparing for the future – and continue to work internationally to tackle crime and improve national security. Our laws allow us to reach beyond our shores and that will not end with Brexit.

I am under no illusions that public confidence and trust in our work also depends on that work being of the highest quality.

In recent times the biggest challenge to that has been 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 the test that is set out in the Criminal Procedure and Investigations Act (the “CPIA”).

It is a test which has been made more difficult in recent years by the volume of data potentially available in modern cases.

In 1997, when the CPIA received Royal Assent, only 16% of households in the UK owned a mobile telephone. Google had yet to be launched, never mind Facebook or Twitter or social media messaging.

In 2017 there were 92 million mobile subscriptions in the UK. There are many different types of mobile phone handsets, with 19 new ones due for release this year. The newest Apple iPhone model has a 256GB capacity, which, if printed, would be 50 million pieces of paper. And Samsung have now released one with 4 times this capacity.

Astonishingly, the technology in most of our pockets is more advanced than that which powered the first NASA missions – and having seen the film First Man recently that fact really struck home.

The way that people communicate with one another has changed in ways that the authors of the legislation could never have imagined. People increasingly live their lives (and so leave trails of evidence and information) on smartphones and social media.

CPS performance in some of the specialist and complex work has been recognised as good practice – but the challenges of examining enormous volumes of digital material are no longer confined to allegations of substantial fraud or terrorism.

In more routine cases, officers and prosecutors are faced with reviewing large amounts of digital material in multiple formats, identifying the evidence, considering whether material falls to be disclosed and presenting the material at trial. This requires more work on every case and different skills.

Extensive action has been underway over the past year to bring about change not just in how cases are handled, but in the wider culture within the CPS and policing. The National Disclosure Improvement Plan was published by the CPS and police in January.

This represented a huge step forward in joint recognition of issues around case management and disclosure and a determination from senior leaders in the police and the prosecution to bring about a step change in performance.

One of my priorities will be to ensure that the focus and momentum is maintained over the coming months and years and that public confidence is improved as a consequence.

Since the plan was published a range of joint measures have been implemented, including additional training of police officers and prosecutors, wider use of disclosure management documents, publication of a National Standard on disclosure and a third party protocol. The CPS and police are also investigating how technology can assist, have updated the Disclosure Manual and brought stronger leadership and oversight at local and national levels.

Most recently, the Code for Crown Prosecutors has been revised to assist.

Although disclosure obligations were referred to in previous Codes, disclosure considerations have never been part of the evidential stage of the Full Code Test.

In other words, when prosecutors assessed whether the evidence was strong enough to merit a prosecution, they were not obliged under the Code to ask themselves whether there was any other material, which was not part of the evidence in the case, that might affect the strength of the evidence.

This has been changed, so that prosecutors must now direct their minds to this question. Because if they do not do so, the risk is clear – a case may be charged prematurely, only for that other material to be discovered or considered at a later date, and if it is found to significantly weaken the prosecution case, we may have to stop the case.

Introducing disclosure considerations into the Full Code Test also has an impact on the timing of the charging decision. In some cases, it might lead prosecutors to delay making a charging decision until the investigation is complete, so that all of the disclosure material can be considered. However, in many cases, this will not be necessary – because it will be possible to predict the nature of the material that further investigations will produce, and to assess the likelihood of this affecting the charging decision.

So the new Code makes clear that a charging decision can be made either:

  • when all reasonable lines of enquiry have been pursued, or
  • prior to this point, if the prosecutor is satisfied that any further evidence or material is unlikely to affect the application of the Full Code Test.

We think this strikes a good balance between ensuring we do not charge cases prematurely and preventing unnecessary delays. It is in the interests of complainants and suspects alike that cases are not charged too soon, only to be dropped at a later stage.

The CPS has also published specific guidance which seeks to address issues where digital devices may contain relevant communication, some of which might fall to be disclosed.

There are competing interests here: while an accused has a right to a fair trial, complainants are entitled to protection from unnecessary and unjustified invasion of their private lives. This balance is particularly acute in rape cases and there has rightly been much debate about how to get that balance right.

We are very clear that seeking to examine the mobile telephones of complainants and witnesses is not something that should be pursued as a matter of course in every case. It is crucial that only the reasonable lines of inquiry are pursued, to avoid unnecessary intrusion into a complainant's personal life. There must be something beyond a purely speculative enquiry.

We were encouraged that earlier this month in the case of R v E, the Court of Appeal endorsed our guidance saying that it ‘appears accurately to set out the considerations that investigators should have in mind when deciding what enquiries should be made during investigations into allegations of sexual offences. It should be noted that it does not say that mobile phones should be examined as a matter of course in every case: the decision is fact specific in each and every case’.

If it is relevant, then it will be a reasonable line of enquiry, but that will not automatically be the case. It is of vital importance that the personal information of those who report sexual offences is treated in a way that is consistent with both their right to privacy and with the interests of justice.

As the actions under the initial disclosure improvement plan are nearing completion, we are moving into the next stage. The priority is to ensure momentum is sustained and that we bring about lasting change. Later this month we will publish phase two, outlining continued themes and commitments of the CPS, the NPCC and the College of Policing and also bringing a renewed emphasis to magistrates’ and youth courts work.

That is vital, because it is in the magistrates’ courts that the vast majority of cases are heard. These are cases which affect hundreds of thousands of people each year.

Those of you – which included me until ten days ago – who have not recently been into magistrates’ courts would be amazed by the change that has been driven by technology. It is genuinely a paper-free zone.

I visited Bromley Magistrates' Court on my second day and was truly impressed by that – and by the work I saw. Sitting next to one of our prosecutors who did a great job dealing with a changing list was an excellent reminder of the importance, and challenges, of this work. I am also arranging to spend a morning prosecuting, so I can experience – not just see – it for myself.

I also recognise that youth court work involves some very serious and sometimes complex cases which require skill and experience, and I will be familiarising myself with that in the coming weeks.

The Attorney General’s Review of Disclosure is due to be published shortly and his recommendations will also inform our further work.

In this context, ensuring that our disclosure obligations are fully met is increasingly resource-intensive for both the police and CPS. And solving these major issues may well require investment – for example in technology.

I am confident we have the talent and commitment within the criminal justice system to overcome the challenges we face.

Throughout my time at the Bar, both prosecuting and defending, I saw first-hand the high quality work of the CPS. And my view has not changed at closer quarters. I have been hugely impressed by what I have seen, and the people I have met, so far.

Supporting CPS people is a priority for me. We have more lawyers in the CPS than any other branch of the civil service. And we have more staff from other professions than lawyers within the organisation. And whatever their role, everyone in the CPS contributes and adds value to our casework.

I also know the quality and dedication of those at the external Bar. I want to make clear that the support for the external Bar will continue under my tenure. The CPS relies on the Bar – we are part of the same effort – and we need to continue to work closely together.

At the same time, I have great confidence in our internal advocates and want to continue the effective balance struck by my predecessor in terms of internal and external advocacy.

I don’t just want to see a strong CPS and a strong external Bar though, I want to see movement between the two – as well as around different parts of the CPS and the wider civil service.

Admittedly I’ve served for quite a long time in one branch of our justice system before making the move to another – but I believe individuals and our organisations could benefit if others moved earlier and more often between roles. So I would like to see more secondments, as well as permanent moves. And I would encourage anyone starting out who has an interest in public service to consider the CPS as one of their future employers, because we have a great deal to offer.

Legal careers in future will, I think, look different to the traditional model – with more movement across the criminal justice system, which will help us all to improve.

As well as sharing skills and learning, this could also help the Bar, and other parts of the civil service, benefit from the diversity which the CPS has achieved.

I have been very impressed by the culture in the CPS – it is clear that many years of effort to increase diversity, remove barriers and create a workplace that enables a wide range of people to thrive has been successful.

The CPS and therefore wider society benefits from that, just as the criminal Bar and wider society will benefit from the work of the Kalisher Trust in opening up legal careers for a wider range of people.
I look forward to seeing the difference that will make – both in terms of the talented individuals joining the justice system and the impact on the casework we all do.

And within the CPS, that is also where my focus will be – on our people and our casework.

I have been DPP for less than two weeks, so I don’t pretend to have all the answers to the challenges we face. But I do know that my priorities will be supporting all the talented and dedicated people we have in the organisation, and focusing relentlessly on the quality of our casework. Through this – and by increasing understanding of our role – we can build public confidence and trust in the CPS, and the wider justice system.

In concluding this Kalisher lecture, may I thank you again for attending, and may I say how pleased I am that the Trust has found a new and this time distinguished Chairman in Sir Ralph Waller, here this evening, recently Pro Vice Chancellor of Oxford University, Principal of Harris Manchester College at the University, knighted for services to education at the beginning of this year. Kalisher will be safe in his hands, and I wish everyone associated with the Trust every good fortune. I am privileged to join the ranks of Patrons of the Trust, and shall of course stay in touch with this valuable work.

And so, finally, with a nod, if I may, to our surroundings in Inner Temple Hall this evening, I re-read a volume produced by this Inn entitled ‘The English legal system in the 21st Century’, containing the Inner Temple Millenium lectures.

The distinguished lecturers included Lord Woolf, Lord Irvine and Sir Christopher Staughton, the last of whom ended his lecture with these words ‘I hope and believe that we shall long continue to impart those essential qualities both of a barrister and a judge, independence, courage and civility’. I can put it no better. That is what I will constantly try to achieve.

Thank you.

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