Sweet and Maxwell Criminal Law Review conference
This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Sweet & Maxwell conference celebrating the 60th Year of the Criminal Law Review
I know you have had a long day, but, looking at the programme an interesting one and I don’t want to detain you for too much longer. I am sure you all want to go home or for some refreshments.
I have been Attorney General now for approaching 5 months and I thought that I might give you a few thoughts about my role, particularly in relation to criminal cases and the prosecutors. I also want to say a little about how we are improving the treatment of victims in criminal cases.
The Attorney General is the Chief Law Officer to the Crown and hence the government. It is an ancient office – dating back to at least the 13th century - although exactly who can be said to have been the first Attorney General is a matter of debate. Whilst Chief Legal Adviser to the government my oath swears allegiance to The Queen and the links to the Crown are still there – indeed I can’t leave the country unless I have the Queen’s permission!
My background before I came into Parliament in 2005 was that of a criminal barrister although I had not practised as such since then.
One of the most public roles that I have is in the criminal sphere - unduly lenient sentences – ULSs. As many of you will know I can refer a sentence to the Court of Appeal if I think that it is unduly lenient. This does not mean low – or even very low – it means a sentence which, to use the words of Lord Chief Justice Lane, “falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate .”
In referring a case to the Court of Appeal I act not as a government minister but as guardian of the public interest which is separate and independent of my role as a minister. Every request that is within the scheme, and is received within the 28 day time limit, is considered personally by either me or the Solicitor General.
Referring a sentence to the Court of Appeal as unduly lenient is an exceptional remedy and very few are referred. In 2013 70 offenders were referred and considered by the court. However the number of sentences actually brought to the attention of my Office has increased significantly. In 2001, 277 offenders’ sentences were referred into the office. In 2013 the number was 498.
A significant factor in the increase is because of references from members of the public, often with no connection at all to the case. It has always been possible for members of the public to write in and ask the Law Officers to look at a sentence but now using the internet, it is easy to do so.
Some of the members of the public who write to me about a ULS send considered e-mails, even citing the sentencing guidelines. Many will simply supply a link to a newspaper report coupled with an expression of concern about the sentence and a request that I review it. One e-mail about any case will cause my office to look at it and, if it is within time and within the scheme, it will be considered by the Solicitor General or me.
Referrals from members of the public – by which I mean those with no connection with the case, not victims or their close family who also refer sentences to me – are important in bringing sentences to my attention and sometimes they will bring to my attention unduly lenient sentences that the prosecutors haven’t. That is a good thing. One of the reasons that the scheme was set up was to ensure that there was confidence in sentencing so it is right that members of the public can contact my office to complain about a sentence. Of course they are not always right and often, inevitably, they are not in possession of the full facts. However a substantial proportion of unduly lenient sentences which reach the Court of Appeal are brought to my attention by members of the public.
In 2013, of those 79 offenders’ sentences referred to the Court of Appeal, 70 were heard in court. Leave was granted in 94% of those cases and 61 offenders saw their sentences increased as a result.
As you can see the number referred and increased is actually quite small in proportion to the number of crown court sentences that take place each year – over 86,000. The numbers show that judges – in referable cases at least - are usually getting sentencing right.
It was an unduly lenient sentence which allowed me, for the first time in many years, to get back into court. Last month I appeared in the Court of Appeal in a case which was the first case of its kind to be considered by the court. 5 offenders had conspired to commit burglary and the method they adopted involved using explosives to blow up and attempt to blow up ATM’s/cash point machines. This was a method which had been used in mainland Europe but was relatively new in the UK. The first offence of this kind was recorded in the UK in 2013 but the numbers have been increasing. The actions of the offenders not only potentially endangered the life of people but the loss and damage that it caused to the businesses targeted clearly called for sentences that would deter others from acting in a similar manner.
The court increased the sentences for all 5 offenders. This was an important case as the Court of Appeal did recognise the need for a deterrent sentence in cases of this kind of case.
Some of the references to me on unduly lenient sentences come from the victims of the crimes themselves. Again it is important that victims feel able to feel part of the sentencing process and the treatment of victims in the Criminal Justice System is an important issue for government.
The government and others – the Courts, the CPS – have done a lot to improve the way that the criminal justice system treats victims and witnesses. Historically they have not been well treated. It was not so very long ago for example that prosecution counsel did not speak to their witnesses before trial; complainants in rape cases had to endure irrelevant cross-examination about their sexual history; and there were no special measures. It is of course vitally important that the interests of defendants are safeguarded but this can be done whilst doing more to ensure that the interests of victims are fully considered.
The Victim’s Code was published last year and in September my former Department, the Ministry of Justice, published “Our Commitment to Victims”. This specifically establishes 5 key commitments with individual time frames. * By March 2015 establish a new nationwide Victims’ Information Service which will be developed into a comprehensive service that allows victims to access the information and support they need. * Strengthen the protection for vulnerable victims by making the experience of going to court a better one. * Increase transparency and accountability, to ensure criminal justice agencies are held to account for the services they provide to victims. * Introduce a Victims’ Law to guarantee key entitlements for victims. * Develop plans for paying compensation to victims up front, rather than victims having to wait for their money.
The CPS is also doing more for victims. When Alison Saunders took over as DPP just over a year ago she set out her three priorities for the CPS. One of those was the service that the CPS provides to victims. The CPS already had the Victims’ Right to Review which allows victims to seek a review of CPS decisions not to charge or to drop charges in certain circumstances. An important development since Alison took over has been the launch by the CPS of a victims’ support package. This includes the establishment of Victim Liaison Units across all CPS areas. These units will be headed by victim liaison officers and all staff will have received specialist training from Victim Support. The aim is to ensure that openness and empathy is at the heart of all CPS correspondence with victims and that, for the first time, victims have nominated contacts based locally to them.
These reforms do not impinge on the fairness of the trial for the defendant but do mean that victims should feel better supported and be better able to give their best evidence. In my view this must be in the interests of justice.
Another of my roles is superintending the CPS and the SFO. What does this mean in practice?
What it does not mean is that I routinely decide what to prosecute. These decisions are quite properly the province of our independent prosecutors, although in certain circumstances Parliament has determined that some offences cannot be prosecuted unless I give my consent. These are a bit of mixed bag – for example I have to consent to prosecutions for offences under the Explosive Substances Act of 1883, offences where someone trespasses at a Royal Palace and for prosecutions at Court Martial when someone has been out the armed forces for more than 6 months. In certain circumstances I even have to consent to prosecutions for sewerage offences under the Water Industry Act of 1991.
When I am considering whether to consent to prosecute I act independently of government and use the tests many of you will be familiar with – is there sufficient evidence and is it in the public interest to prosecute. As guardian of the public interest my primary consideration is whether a prosecution is in the public interest but, of course, I will not consent to a prosecution if I don’t think the evidence is there.
I should mention that I can also intervene where there are issues of national security. I can give a direction to direct that a prosecution is not started or not continued (or, in the case of the SFO, that an investigation is not to take place or not to continue) if I am satisfied that it is necessary to do so for the purpose of safeguarding national security. These cases are highly unusual and where I have given such a direction I must, so far as I can, report to Parliament.
Finally and exceptionally I can stop a prosecution in the Crown Court by entering a nolle prosequi. These are so rare that nobody has yet asked for an english term to be used to replace the latin one.
What superintendence does mean is that I appoint the Director of Public Prosecutions and the Director of the Serious Fraud Office and, importantly, I am accountable to Parliament for the work of the Directors and for the CPS and the SFO. Our prosecutors are rightly independent but this does not mean that they are unaccountable. They are accountable to me and I am accountable to Parliament.
Many of you in this room will work with or for the CPS, or see their prosecutions in Court. The CPS is often criticised for delays and inefficiencies. No organisation is perfect and many of you here may be able to think of examples where the CPS has got it wrong. However I think there is a tendency sometimes to be a little harsh on the CPS. Day in and day out prosecutors are taking difficult decisions about whether somebody should be prosecuted and what for; advising what evidence is needed to prove a particular offence; deciding whether a plea should be accepted to a lesser offence on public interest grounds. Often difficult, finely balanced decisions, with impacts on victims and the wider community.
Like virtually every area of the public sector the CPS has had to face cuts in their expenditure. In the 4 years from 2010-11 to 2014-15 there has been a 28% real term reduction to CPS funding. This was, I am afraid, inevitable given the economic situation that we inherited. However, although it has been difficult, the CPS at all levels have worked hard to maintain performance and to provide a good service and the conviction rate last year was just over 85% .
I am responsible for safeguarding the independence of prosecutors – all prosecutors, not just the CPS and SFO - in taking individual prosecution decisions.
The independence of prosecutors is also underpinned by the Code for Crown Prosecutors which the DPP is required by statute to issue publicly. Other public prosecutors apply the Code which, if it is applied properly, ensures no prosecution will be brought without sufficient evidence or where a prosecution is not needed in the public interest.
I have spoken a lot about the CPS but I want to close by saying something about the SFO, the other prosecuting authority that I superintend.
The SFO investigates and prosecutes the most serious and complex cases of fraud, bribery and corruption. It plays a vital role in tackling these most difficult of crimes. The cases currently being investigated and prosecuted by the SFO, such as Libor, Rolls Royce, Barclays/Qatar, and Forex reflect the importance to the UK and the City of the work that the SFO is doing.
The word ‘investigated’ is important. The CPS is not an investigator; the police and other investigators bring their cases to the CPS and, although they will advise investigators if more evidence is needed, they do not conduct their own investigations.
The model on which the SFO is based – often referred to as the Roskill Model after Lord Roskill’s 1986 report into fraud trials – works well for the SFO. The SFO teams are multi-disciplined containing accountants, investigators, lawyers, IT experts and other support staff. They work closely together, and with the police, so that these complex offences can be properly investigated, and, where appropriate, prosecuted. It is this Roskill model and joint working which allows the SFO to take on such cases. I have said before that business confidence relies on a robust criminal law and I might also add that confident business is more likely to invest in the UK. The SFO is playing its part in ensuring that business can be confident – it is a key player in tackling the fraud that might undermine that confidence.