“Thank you, Professor Shute, for kindly inviting me to give this year’s talk in Sussex University’s ‘Issues in Criminal Law’ series. It is not often I have the opportunity to address an audience of students and teachers of law, and professionals working in the Criminal Justice System. And thank you for your personal contribution to Her Majesty’s Crown Prosecution Service Inspectorate, as a non-executive Board member, and as a member of the Advisory Board for Joint Criminal Justice Inspections.”
Issues in Criminal Law
“I want to speak about a very current and practical issue affecting the operation of the criminal law: the challenge to the prosecution, working in partnership with other criminal justice services, to deliver greater efficiency in the current public expenditure situation. How do we maintain a fair and effective Criminal Justice System in a period of austerity? How can the Criminal Justice System deliver the best service in this climate, without compromise to quality or the requirements of justice?
“But first I will say something about the role of the Attorney General, particularly in relation to the criminal law, and about the workings of the Crown Prosecution Service, the principal service for which I am the superintending Minister. These matters may not be familiar to all of you, and they will also illuminate the main issue I want to address.”
The role of the Attorney General
The Attorney General has to give his days to law and his nights to politics which leave, in days of late parliamentary sittings, but little out of the 24 hours for the man himself.
“So wrote a sympathetic 19th-century commentator.
The office of the Attorney General is indeed where law and politics meet. As Attorney I have 3 main roles: as Chief Legal Adviser to the government, as the government minister responsible for the ‘Law Officers’ Departments’, and a number of independent public interest functions. (The Attorney General also holds the separate office of Advocate General for Northern Ireland.) I will say a little about each of these 3 roles.
“The Attorney is both a senior member of the legal profession - leader of the independent Bar, and a member of the Bar Council - and a senior Minister. This puts him or her in a strong position to provide trusted (and sometimes unwelcome) legal advice to their Ministerial colleagues. Ministers will accept that advice because they trust the Attorney both politically, and as an independent professional. I seek to give my colleagues advice which will enable them to do what they want to do if what they want to do can properly be done within the rule of law. And my office signals the importance that the government attaches to legality and propriety.
“The departments I superintend or sponsor have a range of functions. They include the prosecuting departments, the Crown Prosecution Service (which since the beginning of 2010 has incorporated the Revenue and Customs Prosecutions Office) and the Serious Fraud Office. The others are the Treasury Solicitor, my own Office, Her Majesty’s Crown Prosecution Service Inspectorate; and the National Fraud Authority. I also supervise and superintend about 2000 staff in the Government Legal Service. These deal with the majority of legal issues that confront the Government, which do not need to be referred to me, ensuring that its decisions, litigation, and policies are measured against our domestic and international legal obligations.
“My role as guardian of the public interest covers such matters as: my role as protector of charity; functions in relation to contempt of court; and a power to take part in or instruct the Queen’s proctor to intervene in certain family law proceedings relating to marriage. I may also take decisions under the Freedom of Information Act in relation to papers of a previous administration, and bring or intervene in legal proceedings in the public interest. I have the power to bring contempt proceedings to protect criminal trials and the administration of justice. The common factor in this long and varied list is that in each case I am required to act in the public interest and independently of government.”
How the CPS works
“The largest department for which I am responsible as Attorney, which plays a part in nearly every criminal case that comes to court in England and Wales, is the Crown Prosecution Service (CPS). 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. It is headed by the Director of Public Prosecutions (DPP), with whom my relationship is set out in a protocol. The CPS now carries out a wider range of functions than was ever envisaged in 1986, including statutory charging and responsibility for victims and witnesses, and has become central to the success of the criminal justice system. The CPS’s fundamental role is to:
protect the public, playing its full part in reducing crime;
support victims and witnesses, enabling and encouraging their effective participation in the criminal justice process; and
deliver justice, dealing with criminal conduct fairly, appropriately and firmly and helping to make the court system as effective and as efficient as possible
In carrying out 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 in court and prosecutes the cases with in-house advocates or instructs agents and/or counsel to present cases; and
provides information and assistance to victims and prosecution witnesses
In 2009-10, the CPS prosecuted nearly 983,000 defendants in the courts in England and Wales: over 110,000 in the Crown Court, and about 872,500 in the magistrates’ courts. In addition it dealt with 14,270 appeals and 19,376 committals for sentence in the Crown Court.
“What these cases cost the CPS varies considerably, depending on the court, the type of case, and the outcome. (The following are all nationally estimated ‘unit costs’, per defendant finalised, using the CPS’s well-regarded Activity Based Costing model. They include the majority of CPS staff costs related to case preparation and court attendance in the magistrates’ court, but not costs associated with Crown Court attendance by Crown Advocates or Counsel.)
“Thus, for example, for a summary case in which the defendant pleads guilty prior to the date of trial, the average ‘unit cost’ is £60, but for a case proceeding to trial, £372. For an either way offence tried in the magistrates’ court, the cost is £479. In the Crown Court, the unit cost for a timely guilty plea is £773, for a late guilty plea £1,096, and for a contested trial, about £1,700. The unit cost for committal for sentence by the Crown Court is £157. These figures are particularly relevant to what I will say later about: ensuring that cases are heard in the appropriate court; and encouraging defendants who are going to plead guilty to do so at the earliest opportunity.
“The way in which the CPS undertakes its role is governed by 2 key documents: the Code for Crown Prosecutors; and Core Quality Standards.
“Before charging a defendant and proceeding with a prosecution, prosecutors must first review each case in accordance with the Code for Crown Prosecutors. The Code sets out the principles which prosecutors follow when considering cases. The key principles are that a prosecution should only be started or allowed to continue if there is enough evidence to provide a realistic prospect of conviction against each defendant on each charge, and, if so, where a prosecution is needed in the public interest.
“In March 2010, the CPS adopted and published a set of Core Quality Standards (CQS). In these, the DPP sets out what constitutes a quality prosecution service, and defines for the public how the CPS works and what level of service they can expect. The standards cover 12 areas of CPS work that have the greatest impact on the public, such as advice to the police, charging decisions, bail, the preparation and presentation of cases, and the needs of victims and witnesses. These Core Quality Standards are the benchmark for delivering a good prosecuting service. The reduction in resources, which is my main theme, makes the quality of how the CPS (and indeed other criminal justice services) use their resources even more important.”
Public expenditure on the criminal justice system
“Justice does not and cannot come cheap. According to Treasury figures, before last year’s Comprehensive Spending Review, annual central government spending on preventing crime and delivering justice - including the police, prosecution, the courts, legal aid and offender management - was estimated at over £19bn. Of this, my own departments cost a relatively modest £700 million.
“Whatever the economic climate, all public servants are obliged to make the best possible use of the resources with which the taxpayer provides them. But the situation we face today is that this government inherited the UK’s biggest budget deficit since the Second World War. We are determined to bring it under control by the end of this Parliament. As a government minister, I know that the Criminal Justice System cannot be exempt from that process. As Attorney General, I am determined that will be done without detracting from the quality of justice.
“The outcome of the Comprehensive Spending Review last October included significantly reduced funding for all the criminal justice departments. Expenditure by the Law Officers’ Departments will reduce, broadly speaking, from £700m in 2010-11, to £600m for each year of the spending review period, amounting to a reduction of 24% in real terms by 2014-15. The resource budget of the CPS specifically will reduce from £621m in 2011-12 to £526m in 2014-15. The Home Office and the Ministry of Justice will be facing similar challenges with regard to expenditure on the police, and on the courts, probation and prisons, respectively.”
How are we to deliver the best possible CJS in this situation?
“Against this background, maintaining and indeed improving the quality of the Criminal Justice System will be a major challenge. This can only be met by all of us involved working more efficiently in our own areas, focusing on fairness and effectiveness, and ensuring that we safeguard the quality of the service we offer the public. And we need to work together better, to take this opportunity to rethink processes and organisational arrangements, modernising and streamlining them. So I will look first at what my own departments are and will be doing to meet the challenge, and then at some of the issues for the CJS as a whole.”
What the CPS is doing
“The CPS had been preparing for the anticipated outcome of the Spending Review for some time, cutting costs wherever possible. This included reducing the size and costs of its Headquarters, to release resources to the frontline. CPS Headquarters has reduced by 25% in the last 12 months, with some functions being devolved to CPS Groups, and the CPS has cut down on centralised change initiatives. The CPS has also relocated from Ludgate Hill in the City of London, to more economic accommodation at Rose Court, just across the Thames.
“Most business processes are already located away from London. Other efficiency measures have included: renegotiating the contract for IT and communications to achieve savings of at least 20%; implementing a recruitment freeze from 1 November 2009; a new Estates Strategy to facilitate the closure of smaller, uneconomic offices; and a new procurement strategy.
“A good example of greater efficiency through flexible deployment of staff and use of technology, is that police in London can now be given ‘real-time’ charging advice by CPS prosecutors sitting in Newcastle. Thanks to measures such as these, from 2007 to 2010, CPS expenditure decreased by 7%, in spite of pay and price increases. And the merger with Revenue and Customs Prosecutions Office delivered savings of about £12 million.
“The CPS is thus well prepared to make the savings that will be required by March 2014, through strong forward planning. There are a number of further steps that it will be taking. As the largest item in the CPS budget is staff costs, over 55% of expenditure, it is inevitable that the largest proportion of savings will come from a reduction in staff and associated costs.
“Like other government departments, the CPS is working with the trade unions on voluntary departure schemes. The DPP has made clear to staff that what he is trying to avoid, at all costs, is compulsory redundancies. The remainder of the savings will come in areas such as counsel fees, accommodation and IT costs. The CPS will also need to make savings through the CJS working more efficiently together as it cannot simply carry on working in the same ways but with fewer staff.
“With the help of HM CPS Inspectorate, who have an ongoing role to enhance the quality of justice through inspection and assessment of prosecution services, and in so doing to improve their effectiveness and efficiency. The CPS must improve its processes, performance and organisational structures, to contribute to greater efficiency.
“For instance, at the end of last month, the DPP announced that from April the CPS structure will move from 42 areas to 13, each led by a Chief Crown Prosecutor (CCP) and Area Business Manager (ABM). This will enable the CPS to organise more of its functions on a 13 area-wide basis, whilst still providing a local presence where that is most appropriate. These changes will provide much more opportunity for areas to manage and match their resources to their business, and take on devolved HQ functions, adding greater efficiency and flexibility.
“The CPS will remain a national service, delivered locally. At the local level, the CPS has long been working closely with other agencies in Local Criminal Justice Boards, and engaging directly with the communities it serves. And the CPS will of course cooperate with the new Police and Crime Commissioners, to be directly elected from next year. But at the end of the day the role of the prosecutor is independent, and the critical decision whether or not to put someone before a criminal court should be taken on the same basis, applying the Code, throughout the country.”
SFO/ECA and NFA
“I will refer briefly to how 2 of the other departments that I superintend are meeting the challenge of increasing efficiency. We announced in our Coalition Programme for Government last year that we would create a single Economic Crime Agency. This will improve the way we tackle serious economic crime by bringing together the responsibilities of, among others, the Serious Fraud Office. The SFO will anyway be making efficiency savings in all areas of its business, but especially on accommodation and corporate support areas, to ensure that the majority of its budget is focused on investigating and prosecuting economic crime and supporting the victims of economic crime. The National Fraud Authority will continue with measures that have been implemented in 2010/11 to reduce expenditure on corporate services, conferences, external recruitment, marketing and advertising.”
The importance of partnership working in meeting the challenge
“As I have said, all the CJS Departments and services need to work together better, to identify where processes and organisational arrangements can be modernised and streamlined. We need effective national and local partnership working, respecting each others’ independence, but sharing a common vision of effective justice, and common goals to draw out efficiencies. In December 2010, the Lord Chancellor published a consultation document, ‘Breaking the Cycle: effective punishment, rehabilitation and sentencing of offenders’. This made clear that the Criminal Justice Departments and services and the judiciary needed to work together to ensure that the Criminal Justice System operates as efficiently as possible end to end.
“Unilateral action won’t do. Success will require a collective approach: a single vision for the system, some shared objectives and a robust evaluation framework. And we must be mindful of certain risks. One is that confusion of objectives, or de-motivation of staff, may impact on the operation of the whole system as individual agencies carry out their own major change programmes. Another risk is that public confidence in the CJS may deteriorate, particularly if the need to make savings is seen as the only driver for change.
“Improving the efficiency of the Criminal Justice System is not a new agenda. Efforts to do so have been made over the last 10 years, when more money was around to lubricate change. Limited progress has been made. But the current fiscal climate, and new political leadership, offer a real opportunity to transform the Criminal Justice System, providing the public with ‘better for less’.
“We all know the system’s current problems. Procedures are too bureaucratic. The system is risk averse, and still depends on the transit of paper documents. Cases often take too much time. Despite improvements, there are still too many cases which ‘crack’ because guilty pleas are made on the first day of trial. There are still too many ineffective trials as a result of parties not being ready or witnesses not attending court. Many adjournments could be avoided.
“There are no silver bullets. Tackling inefficiency will require a sustained collective effort throughout the spending review period and beyond. Leadership will be crucial: from Ministers; from heads of the relevant agencies; at the local level. And strong and visible support needs to come from all those with an interest in the system.
“To start with, effective case management will be a critical part of meeting the challenge of greater efficiency. Prosecutors need to work with colleagues across the system and all parties must focus on efficient case management, in the Crown and magistrates’ courts. This should deliver benefits in reducing both the length of trials, and the level of cracked and ineffective trials. A fair trial need not bury the parties in paper and process.
“The Lord Chancellor has already consulted on initial plans to make better use of the court estate. We will close those courts which are under used, or not fit for purpose, while maximising the use of the remaining court estate by targeting our resources on improving facilities elsewhere.
“It is also important that cases are heard in the most appropriate court. The Crown Court is the right place for the most serious cases, and when a defendant has elected to be tried by jury, but it does the justice system no good if it is used inappropriately. This is particularly so because, in the last few years, workloads in the Crown Court have increased, while those in the magistrates’ courts have fallen, so that they are operating at significantly less than full capacity.
“In 2009, there were nearly a fifth more cases received in the Crown Court for trial or sentence than in 2006 (136,000 rather than 113,000). Over this period, the Crown Court considerably improved efficiency by dealing with almost 20,000 more cases, but over 40,000 cases were awaiting trial in 2009. And of course Crown Court cases are significantly more expensive than those in the magistrates’ courts, as I have illustrated earlier for the CPS.
“For all these reasons, it is in everyone’s interests to see more cases dealt with summarily by magistrates. While the discretion for magistrates to refer cases to the higher court where necessary should be preserved, this should happen only when there are clear and compelling reasons. Cases are being tried in costly ways, even when there is a choice. Over 55% of defendants in ‘either way’ cases sentenced in the Crown Court receive a sentence which could have been imposed by magistrates.
“Whatever court a case is heard in, there is an urgent need to improve the administration and progression of cases through the system. Rules, processes or procedures that are unnecessary or overly burdensome must be changed. In particular, criminal justice has been a paper-based system for far too long. The progression of cases still relies too heavily on a labour-intensive transfer of paper to the right person at the right time. The same information has to be repeatedly written down or compiled for different purposes.
“No one now can afford big IT projects, but to speed up and simplify processes, agencies need to make the best use of the technology they have already got. We must move to a digital CJS as soon as possible. This is of the utmost importance. The CPS has projects in several areas, which demonstrate how this can be done. This includes prosecuting a small number of cases in a magistrates’ court using a laptop.
“For instance, at Aberystwyth Magistrates’ Court, prosecutors regularly use a laptop computer in court. This means that, if, during a trial, the need arises for the court to see additional documents or photographs, the prosecutor can email colleagues in, say, Carmarthen, to request these. When they are emailed back, the prosecutor can show the evidence to the court, all without the need for a long adjournment. The use of these computers in court also means that, immediately after the trial, the CPS can email the outcome to the police, greatly speeding up the time in which the result reaches them. And I understand that, on the Isle of Wight, prosecutors run a trial from a ‘tablet’.
“Other aspects of digital working that the CPS has successfully trialled include regularly using Electronic Presentation of Evidence (EPE) in document intensive fraud trials and setting up digital witness care units in some parts of the organisation. Moving to electronic caseworking and using the electronic case file will significantly reduce CPS’s reliance and dependency on paper and support more flexible and mobile ways of working. The benefits include:
simpler, faster and cost-effective preparation of cases
simpler, faster and cost-effective exchange of information with the police, courts, the defence and prosecution counsel
improved victim and witness care - digital file will ensure that the necessary information is provided more quickly to victims and witnesses and in a manner that they want
There is also scope for greater use of technology in communications between the CPS and the Bar. This is of course an important relationship. Although the CPS has increasingly deployed in-house advocates, it has a strong interest in supporting the self-employed bar. The CPS believes it is close to an agreement with the Bar on establishing a future mutually beneficial relationship between the 2 bodies. There are 4 strands to this agreement:
a selection model for self-employed advocates, known as Advocate Panels
agreement on revised remuneration arrangements;
joint training initiatives, and
exploiting secondment opportunities
“Detailed proposals for Advocate Panels have been worked-up with the Bar. The Bar has consulted upon those proposals and the leadership of the Bar has now confirmed their approval. As part of the Advocate Panel process, the CPS will seek applications from advocates with access to secure email.
“Furthermore, my Office and the prosecution services have just yesterday agreed with the Law Society a Memorandum of Understanding to support the greater use of secure emails. This will really speed up the provision of information throughout the system and enable problems to be addressed sooner and support more efficient working between the prosecution and defence.
“In addition, we would also like to see electronic case files introduced as early as possible, so that case material can quickly be moved between the defence, police, CPS and the courts, improving efficiency and saving money in all these agencies.
“More extensive use of video technology also has the potential to produce considerable efficiencies in the conduct of the business of the courts, and the wider CJS. There is already an extensive national network of video links between prisons and courts. The Ministry of Justice is looking at how we can build on existing pilots of virtual courts and prison to court video links.
“We need to make sure that all cases are dealt with as quickly as possible, but this applies in particular to guilty pleas, which are the vast majority of cases. One of the worst inefficiencies in the system is that more than two-thirds of the cases reaching the Crown Court end in a guilty plea.
“Well over 10,000 such cases in 2009 pleaded guilty at the door of the court. In most instances the defendant could have done so, and been sentenced, in the magistrates’ court. Their not doing so means that court, police, prosecution and legal aid resources are wasted on cases that did not need to progress any further. Moreover, victims and witnesses have longer to wait before they discover whether they will have to give evidence, and the outcome of their case.
“The sentencing framework has long recognised the benefits of early guilty pleas in terms both of efficiency and of sparing victims needless worry. We all want to ensure that defendants are encouraged to plead guilty at the earliest opportunity, eg by more effective use of the sentence discount given for an early guilty plea. The Ministry of Justice is considering introducing a maximum discount of up to 50% for those who plead guilty at the earliest stage. ‘Breaking the Cycle’ invites views on how defendants who are guilty could be better incentivised to enter that plea at the earliest opportunity.
“Last year, I visited Liverpool Crown Court and saw the ‘Early Guilty Plea’ initiative there. This aims to have just one hearing to dispose of a case in which the defendant is pleading guilty. The impact of good case management was striking. I was impressed at what could be done by cooperation but with clear independence of roles. It is no longer acceptable to say it is for the prosecution to prove their case and allow the defence to sit back and do nothing until the beginning of the trial when far too often the plea is changed to one of guilty.
“Can the success of the Liverpool scheme be replicated elsewhere? To find that out, pilots of Early Guilty Plea (EGP) arrangements are now running at Reading, Winchester, and Bristol Crown Courts. The key principles of these are:
early identification by the CPS of suitable cases, and provision of papers to agreed deadlines, with preparation proportionate to the complexity of the case
active defence participation - ensuring that clients are engaged early, and that the time from service of papers to the EGP hearing is fully utilised, and
the defence and CPS together ensuring that the EGP hearing is effective, with the expectation that defendants will enter a guilty plea, and sentencing will take place then, wherever possible
“Although these principles are relatively simple, they can only be put into practice through the cooperation of all agencies, and the involvement of defence practitioners. But the benefits, including savings of time and resources, and greater efficiency and effectiveness, should be felt by all who may be involved in a court hearing: police, prosecution, defence, court service, probation and prisoner escorts. The defendant of course benefits from maximum discount for plea. And, last but definitely not least, victims and witnesses should be saved stress and anxiety, as cases are finalised more quickly, and their presence may not be required in court.
“A particular focus in the drive for greater efficiency is ‘Very High Cost Cases’. There are not many of these, but they consume a disproportionate amount of court time, legal aid and prosecutor and investigator resource. If the definition used is that the trial is likely to last for more than 40 days, there are approximately 100 new Very High Cost Cases a year, costing almost a tenth of the legal aid budget alone. The CJS Departments and agencies share a common goal of finding ways to litigate these cases in a fair, efficient and effective way.
“Within the CPS, these cases are all now reviewed by internal Case Management Panels, who apply close scrutiny to ensure the case is being prepared fairly but efficiently. The CPS wants to expand that approach to other cases.
“The CPS and other interested parties, including the senior judiciary, are also looking more generally at other ways in which Very High Cost Cases can be prosecuted more efficiently and effectively. A group has been formed to identify and disseminate good practice in the litigation of very high cost cases; and to identify any legislative, policy or procedural changes that would promote effective litigation.
“For instance, it has been suggested that formal plea discussions, introduced in 2009 to help manage serious or complex fraud cases in a more efficient manner, should become a common feature of Very High Cost Case litigation. Their use has the potential to considerably cut down the work of all parties. By identifying and securing guilty pleas at an early stage, much preparatory work is saved.
“Disclosure is a major problem in these cases, usually involving massive volumes of material available to investigators on computers. This must be appropriately examined, which is extremely resource intensive. We need to ask, what is the best method of focusing disclosure on issues that are germane to the trial?”
“We should not underestimate the challenge facing prosecutors, and all the criminal justice agencies, as they continue to deliver the services they have to deliver, to the appropriate standard, more efficiently, with fewer resources. The greater use of digital technology in particular is essential and the CPS are at the forefront of advocating such changes within the CJS. But it needs all the different players recognising its importance and coming together to make the changes happen. This is imperative if we are going to provide a quality service and do so in a way that is more efficient. But I am confident in the ability of everyone involved in the Criminal Justice System to do so.”