Dear incoming DPP...
6 September 1998
Christopher Frazer has some advice for the next Director of Public Prosecutions. Christopher Frazer is a practising barrister at Harcourt Chambers, London and Oxford.
In 1993, the Centre for Policy Studies published a pamphlet of mine regarding the Crown Prosecution Service (CPS). In 1997, the Labour Party also published a pamphlet about the CPS.
Labour's analysis of the CPS corresponded with mine - often with such similarity that an acknowledgement would have been in order! Such is the common ground over the CPS' shortfalls that the next Director of Public Prosecutions (DPP), will receive universal backing when they act to remove the poison from the chalice which they have accepted.
The first problem is the nature of the modern DPP's job. Today's DPP runs the CPS, but this was not always so. The office was created by the Prosecution of Offences Act, 1879.
Apart from a lull between 1884 and 1908, for nearly 80 years, the DPP and a small staff personally intervened in cases of importance or difficulty, but left run-of-the-mill prosecutions to other people's devices.
The 43 separate police force areas had their own arrangements. The majority had prosecuting solicitors' departments - solicitors in the employ of the local authority who acted on behalf of the police in advising on prosecution decisions and presenting cases in court when the police decided to proceed.
Some forces used local firms of private solicitors to advise and act for them. But the vital feature with both systems was that the solicitors acted on the instructions of the police.
Between 1978 and 1981, the Philips Commission looked into all aspects of the criminal procedure. Its final report described these prosecuting arrangements as "characterised by their variety, their haphazardness and their local nature".
The real problem at that time was that the police did the investigating and, in effect, the prosecuting too. There was no independence and review between the two functions.
Philips recommended that there should be a demarcation of responsibility between the investigation and prosecution of offences, by creating local crown prosecutors to review the police's decision to prosecute and to take responsibility for preparing cases for court.
There would be a prosecution service for each police force area, supervised by a local combined police and prosecutions authority, to which both the chief constable and the crown prosecutor would answer.
Philips rejected the idea of a centrally-directed national prosecution system. In a chillingly prophetic passage, which the next DPP should have engraved above their desk, Philips warned of the "disadvantages that are likely to accrue from the bureaucratic nature of a large national organisation working in this area".
It continued: "In order to transmit policies from the centre into effective practice at local level... elaborate reporting and other supervisory systems would be required; this might create pressure for management to be in the hands of professional administrators rather than of solicitors.
"All would be at the cost of substantial resources, and perhaps of the morale of the solicitors who would be operating on the ground.
"Furthermore," it went on, "there would be powerful forces at work tending to promote the interests of those at the centre rather than those on the periphery whom the organisation is, in fact, there to serve and work with - the local police, courts and community".
On 14 December 1993, Roger Evans MP stated in the House of Commons that "one of the more exotic mysteries to which scholarship will, in 100 years, apply itself, is how the government of Baroness Thatcher managed in the 1980s to set up a new nationalised industry in the form of the Crown Prosecution Service".
I suspect that the Government was horrified at the prospect of giving criminal justice powers to local authorities because of their supposed excesses elsewhere.
Whatever the reason, the Government ignored Philips, and set up the CPS - whose expenditure grew by 56 per cent from 1987-88 to l995-96, and whose administrators now outnumber lawyers by two to one.
If one is the sort of barrister who prosecutes every case to the hilt and enjoys mountains of paperwork, then one might be tempted to believe that they are suited to taming this £300m CPS monster as the new DPP.
This is a temptation which the next DPP should resist. Whatever qualities we barristers possess, running large organisations forms no part of our natural skill. A new chief executive has been appointed. He will consider matters of internal management, which the DPP should leave well alone.
When the Government fulfils its pledge of devolving the national CPS down to chief crown prosecutors at local police areas, then the administrative burden on the DPP should lessen considerably.
If one measure will transform the CPS this is it, and the new director must insist on immediate implementation. The DPP can then concentrate on the big picture. Morale is at an all-time low. A recent MORI survey found that only 6 per cent of staff placed the CPS as "one of the best / above average" places to work. This was the lowest score for this question of over 400 organisations which were surveyed. The next DPP should ensure that regional visits are congenial and encouraging - visits, not visitations.
The new DPP must achieve a rapid change of culture. The present regime brooks no criticism. The holders of dissident opinion are doubtless noted in a fat book at HQ. For morale to improve, the control freaks must depart.
Bureaucratic tasks: the collection of statistics, the filling-in of forms and the supply information for senior management - undermine the function of the crown prosecutor - to apply an independent mind to the case in hand and to make judgment about the right way forward. With that independence should come the ability to explain why a course has been followed.
But today, to the outside world, reports of poor performance are waved aside as "anecdotal" (a favourite word), and therefore somehow untrue.
The problem with this attitude, of course is that too much spin does not wash. Previous directors such as Allan Green QC have had it within them to apologise when necessary: in June 1990, for example, the then DPP conceded that "setting up a new service has proved to be a costly business". Some contrition is essential if the CPS itself, and public confidence in the system, is to be rebuilt.
Understandably, concerns about crime cannot be overstated - the number of recorded robberies rose from 15,006 in 1980 to 68,074 in 1995. Conversely, when conviction rates are falling, especially for violent and sexual offences, the public feels, quite rightly, that criminals are "getting away with it".
If it was ever necessary to give respectability and reliance to the evidence about the failings of the CPS, the Glidewell Report does so - in spades.
And so we must look to the future. As with Lord Woolf's seminal work on civil justice, this senior former Lord Justice presents a comprehensive manual for reform, intended to be put in place as a whole.
Piecemeal implementation will not do. Police practices, the court service, victims, witnesses - all will need attention alongside any reform of the CPS.
It will fall to the next DPP to superintend the CPS' moves in the jigsaw. The Attorney General tells us that there is to be a period of consultation and reflection, but no time limits have been set. So my final word of advice to the next DPP is this: get yourself appointed soon - and get moving and shaking.
Related CPD/EventsSign up for CPD/Events alerts
MBL Seminars Limited