Focus on fairness – prosecuting crime in a changing world: Speech by Max Hill KC, DPP, to the Howard League

Opening

Good evening. Thank you for coming – and thank you to the Howard League and Kingsley Napley for hosting this event.

The last time I gave a lecture for the Howard League was in October 2019. I referred then to it being "a time of national upheaval and some political uncertainty". I had no idea then just how much upheaval and uncertainty there would be.

There have been a myriad challenges of the past few years, but it has been a privilege – and overwhelmingly a pleasure – to serve as Director of Public Prosecutions. And tonight I am grateful to the League and this firm for the opportunity to reflect on my tenure, the theme of which is fairness – which I have endeavoured to make central to my time as DPP.

Because at the CPS, our aim is to deliver justice. And justice, by definition, demands fairness – in fact, in its most simple definition, justice is the quality of being fair and reasonable. And so our justice system must have fairness at its heart.

I am going to start this evening by exploring why I believe the Crown Prosecution Service – an independent, objective, and national prosecution authority – is so crucial for the fairness of our whole criminal justice system, before moving on to consider that fairness through three lenses.

Why the CPS is crucial for fairness of the system

So why is the CPS crucial for the fairness of our justice system?

To understand this we need to understand the role – and the origins – of the organisation.

We all know that the CPS prosecutes criminal cases. We review the evidence that the police, or other investigative agencies, have collected and decide whether someone can be and should be charged with a criminal offence. And then we present the evidence and invite a court to find the defendant guilty.

We are independent, and we make all our decisions fairly and objectively by following the legal test set out in our Code for Crown Prosecutors – that is the key document and I’ll return to it in a moment.

But it wasn’t always this way. Until our creation as a Service in 1986, criminal offences in England and Wales were prosecuted by a range of people – private individuals, police officers or police solicitors, county prosecutors and local firms of solicitors. That’s what was happening until the mid-1980s.

That changed as a result of the Philips Commission – a Royal Commission on Criminal Procedure. The Commission examined the existing prosecution framework in light of important questions, including: “is the system fair?”.

That led to the Commission report in 1981, which recommended that a prosecuting solicitor service – which came to be the Crown Prosecution Service – should be established to cover every police force in England and Wales. 
The service was to be structured to recognise the importance of independent legal expertise in the decision to prosecute; make the conduct of the prosecution the responsibility of someone both legally qualified and not identified with the investigative process; and achieve better accountability locally for the prosecution service, whilst making it subject to national controls.

And I believe that three resulting features of the CPS – our independence, our legal expertise and the national nature of our service – help to ensure the fairness of our whole criminal justice system.

Independence

Starting with independence – there are three key strands:

• Our independence from investigators ensures we decide impartially if someone should be charged. In other words we test a case on its facts alone. This independence in serious, often life-changing cases is crucial to ensure that all decisions are taken fairly and impartially.
• Our prosecution decisions are also independent of political influence. Yes, we work openly with, but cannot be directed by, democratically elected representatives – such as Police and Crime Commissioners and Members of Parliament. That political independence is essential in a democracy, so that everyone involved can be confident that cases have been brought fairly, and of course lawfully.
• And we are independent of the courts in which we prosecute – instead representing the public interest in court. 

So, the CPS itself is independent – but how do we ensure that this independence supports fair decision making? This takes me back to the Code I mentioned a few moments ago.

The Code

Well, all our decisions are made by skilled prosecutors within one legal framework – our Code for Crown Prosecutors. Every charging decision is based on the same two-stage test:

1. Does the evidence in the case provide a realistic prospect of conviction? And
2. Is it in the public interest to prosecute? That means asking questions like how serious is the offence, what is the harm caused to the victim, what is the impact on communities and is a prosecution a proportionate response?

And I believe this objective test of the evidence and public interest by an independent prosecutor is the fairest way to help the system as a whole deliver justice.

The first stage of the test is the evidential stage, which states that prosecutors must be satisfied that there is enough evidence to provide a “realistic prospect of conviction” against each defendant on each charge. This means that an impartial, objective and reasonable jury, magistrate or judge, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. And of course when it comes to it at trial, the magistrates, judge or jury apply the evidence to a higher test which says that they must be sure that a defendant is guilty in order to convict them.

Some might argue that if there is any evidence to suggest a suspect may have committed a crime they should be charged – but would that be fair on someone who can also present compelling evidence that they did not?

And others might argue that a suspect should only be charged if a prosecutor is absolutely certain they committed a crime. And my answer to that is would that be fair on a victim who might therefore be denied justice?

It would also usurp the vital role of the court – and the jury – in deciding guilt. Because at the CPS we do not decide criminal cases – it is our duty to charge the right person with the right offence, present that to court, and leave the court to decide.

If the evidential stage of the two-part Code test is met, the prosecutor can move to the second element – is it in the public interest to prosecute?

The public interest does not mean those things or cases in which the public are interested. Nor is it, necessarily, the public’s view or opinion on whether a prosecution should progress. Instead it is a reasoned assessment, based on a set of questions clearly defined in The Code, on whether a case should proceed.

For certain offences we also issue prosecution guidance, and we put that alongside the Code, to explain how the Code is applied in particular instances. If you like, the Code addresses the “general” approach. Where necessary, prosecution guidance will then provide additional information to address the “specific” approach to types of offence and individual cases.

For example, our casework experience suggested we needed a framework to articulate when it is, and is not, in the public interest to prosecute in so-called mercy killing or suicide pact cases. These are extremely sensitive cases.

So we drafted new guidance, then sought views from the public – and we had a huge response. We carefully considered all views and we then expanded our guidance as a result.

That means – and this is not unique – that there are a number of relevant factors pointing towards, and away, from prosecution – that a fair prosecutor should be considering when making their decision. The guidance helps them to address and take into account these factors. That is an example of how guidance is used alongside the Code.

The aim was not to prosecute more or less of these cases, the aim was to ensure there was a clear framework for these very difficult and sensitive decisions: to ensure fairness, transparency and consistency – that is what we’re driving for.

A national service

And this brings us to the final element arising from the Phillips Commission – the nature of the CPS as a national prosecuting authority, remembering there hadn’t been one before 1986.

One of the questions the Commission asked was: Are there “inexplicable differences in the way that individual cases or classes of case are treated locally or nationally?”

The conclusion they reached was that at that time different police forces around the country used different standards to decide whether to prosecute.

Having a single, national organisation and having that organisation apply a consistent test independently across all more serious cases – which the CPS now does – is the best way to ensure fairness. From Carlisle to Bournemouth and Norwich to Llandudno, we apply the same test, and the same legal guidance, in every case.

And the national nature of our service also has other benefits.

We can move work around the organisation to deal with surges in demand in a particular location, and so provide a more consistent service across the country – something which helped us enormously during the pandemic, and which continues to help us respond flexibly to the challenges we face.

And we can learn from best practice wherever it develops – then apply it consistently so that all communities see the benefits.

We have done this recently with rape prosecutions. I have made it a priority to improve these through joint working with the police.

Building on insights from initial work, in July we announced the roll out of a new national operating model. We have done this in tandem with the police – so we have an improved and standardised approach for how all adult rape cases are handled.

I am very grateful for the support of police colleagues through the National Police Chiefs’ Council which has allowed police and prosecutors to achieve so much collectively in recent years. And thinking about policing, I would support their calls for more resource so that they can better coordinate and lead change right across policing.

Who, where, when

I want to turn now to consider how the CPS strives for fairness by considering it through three different lenses – who, where and when:

• The need for everyone to be treated fairly by the criminal justice system – the ‘who’ 
• The location of crime and the implications for fairness – the ‘where’; and
• The timeliness of justice and its impact on fairness – the ‘when’.

Who

Starting with ‘who’. By definition, criminal justice – and therefore by definition the CPS – must be fair to everyone. But it is useful to consider in more detail how that applies to particular groups.

Starting with the usual participants in a criminal case. We want to provide victims and witnesses with a consistently high-quality service. We want to uphold their rights and the rights of defendants in a way that is fair and understood by all communities.

Victims

At the CPS we are transforming the service we provide to victims through our long-term Victim Transformation Programme. And, crucially, victims’ voices will be absolutely central to our efforts – through a new Victim Reference Group we have established to hear directly from victims.

We will introduce a Universal Service offer for all victims of crime, designed around three key aims:

• Building victims’ understanding of the role of the CPS and their entitlements as victims; 
• Enabling victims to get the support they need; and
• Providing timely updates and information throughout the victims’ criminal justice journey.

In addition, there will be an Enhanced Service for victims with the greatest needs, providing more frequent and tailored communication from the CPS.

In developing that we are prioritising adult victims of rape and serious sexual offences as the first cohort to receive this Enhanced Service.

They will get a dedicated victim liaison officer in every case, so there is a single point of contact. And every rape or serious sexual offence victim will be offered a meeting with the prosecution team once they have been notified that their case is proceeding to trial. This will give victims the opportunity to discuss what happens next and ask any questions they have about the process.

Taken together, my hope and my belief is that these reforms will ensure victims are better supported and informed throughout a prosecution – a vital part of fair treatment.

Defendants

It is also vital that we are fair to defendants.

A crucial duty in ensuring fairness for defendants is disclosure – that is, our duty to provide the defence with copies or access to all material that is capable of undermining the prosecution case and/or assisting the defence. This has become more difficult in recent years due to the sheer volume of data potentially available in modern cases – from computers, smartphones and CCTV – and indeed, when I became DPP there had been a crisis in disclosure.

So, what have we done about it? Well I have put sustained focus on tackling this through joint work with the police. I introduced new guidance for police and prosecutors with disclosure at its core, updated training and put in place disclosure experts in every CPS Area. We are now seeing fewer cases fail due to disclosure issues, and we are also seeing much more regular engagement between police and prosecutors to make sure we identify potential material and share with the defence as early as possible.

But we also needed to do more to ensure fairness for all defendants – and so I was pleased to oversee the development of the CPS’ first defendants’ strategy. Informed by insights from a range of stakeholders, the strategy focuses on three areas where suspects and defendants may face particular challenges when involved in the criminal justice system: youth justice, mental health and the proportionality of our decision making.

On youth justice we have:

• Introduced the ‘Child First’ approach to cases involving children as suspects and defendants – focusing on avoiding unnecessary criminalisation of children;
• Provided new training to upskill prosecutors when dealing with cases involving children and refreshed training on introductory conversations with defendants at court, which now includes a short video representing the ‘voice of the child’ – developed in collaboration with the Youth Justice Board; and
• Worked with the police and other partners to ensure consistent decision making that considers the child’s individual circumstances and those of the offence.

We have also undertaken significant work to address areas where suspects and defendants may face challenges due to mental health or neurodiversity needs. This is a topic I discussed when giving the Howard League’s Parmoor Lecture back in 2019. Since then, we have:

• Provided up-to-date practical support to prosecutors making decisions in cases involving suspects or defendants with mental health conditions and disorders;
• Developed a new joint police and CPS Mental Health and Neurodevelopmental Checklist to improve the quality of information provided to the CPS;
• Implemented a flagging system for cases involving a suspect or defendant with a mental health condition. This helps to ensure that mental health is considered at every stage and keeps Prosecutors alive to the fact that sometimes defendants may need more assistance at court.
• Established a Mental Health Stakeholder Forum to gain wider insights to inform our approach.

Turning to the proportionality of our decision making. Previous studies of disproportionality in the criminal justice system have reflected favourably on the CPS, but we wanted to ensure that we were holding ourselves rigorously to account. We therefore commissioned independent research from Leeds University, examining our decision-making to identify any disproportionality in the outcome of CPS charging decisions. 

The research so far, a summary of which was published in February of this year, shows that there is evidence of disproportionality in the outcomes of our charging decisions in relation to ethnicity. This means that ethnic minority defendants are more likely to be charged for a comparable crime than White British defendants. However, as this initial research is statistical analysis only, it cannot tell us about why the disparities are there, but there is some disparity there.

So we can’t stop there. We are therefore carrying out a comprehensive programme of further research to explore what factors may be contributing to the disparities and have established an independent Disproportionality Advisory Group to oversee and advise us on this work. I am grateful to them, and to everyone working so hard within the organisation on what I regard as a crucial project.

As part of our work on identifying and addressing disproportionality, we have also been looking at Joint Enterprise cases. We started a six-month pilot in February 2023 under which we manually, case by case, reviewed homicide and attempted homicide prosecutions brought on a joint enterprise basis in seven CPS Areas. We also convened a Joint Enterprise Scrutiny panel to review a number of finalised cases. A report of the findings from the pilot and subsequent actions was published last week, so this is recent news, and will inform the development of a national scheme to monitor Joint Enterprise cases by sex, ethnicity, and age across all CPS Areas.

We understand the importance of improving equality data collection and monitoring to understand how individuals with a range of characteristics interact with our service, and we continue to engage with police forces to encourage the completion of this data. Work in progress, but very important.

Community engagement

In describing these important projects I have mentioned a reference group, an advisory board and a scrutiny panel. I apologise for the range of names, but the point is I am proud that we are focused on listening to and learning from those we serve – on these topics but also across our range of work.

Because we can only deliver fair prosecutions if we work in a way which is inclusive of the diverse communities which make up England and Wales. And engaging with and responding to communities keeps us accountable for the service we provide – and that helps us to deliver a fair service to all.

We focus on three things to help us do this:

• First, using insight and feedback from communities to improve our policies and the way we work. We do this through a range of local and national forums, scrutiny panels and Community Conversations – listening carefully to community advocates, experts and those who are disproportionately affected by some crimes, then we are translating what we hear into action wherever appropriate.
• Second, we are explaining who we are and how we work to help everyone have confidence in the CPS and the criminal justice system; 
• And third, being a diverse and inclusive organisation. The CPS is proud to be one of the most diverse departments in the Civil Service, but we continue to strive to be as representative as possible of the people and communities we serve. 

Some recent work in the North West encompassed all these elements. In response to concerns from the Sikh community about the prosecution of hate crimes, the Chief Crown Prosecutor met with Sikh faith leaders and wider members of the community. This provided the opportunity for him to give much-needed reassurance, and explain our decision making in relation to hate crime cases.

As a result, two members of the Sikh Community have joined our race and religious hate crime scrutiny panel – they are now involved themselves in reviewing finalised hate crime cases and they see first-hand how we make decisions. And CPS staff also attended a Careers fair in a Gurdwara, supporting our work to recruit from all the communities we serve.

Where

Moving on to where – the location of crime and those affected by it has implications for our work at the CPS, and the way criminal justice systems around the world must operate if we are to maintain fairness.

Changing nature of crime

The crime threat is continuously growing and evolving, and with it the real and virtual locations in which crime is committed. Criminal networks are increasingly operating across borders and quickly exploiting advances in technologies to commit crime in new ways.

We decided we needed to create a united team within the CPS to tackle these challenges – bringing together specialists in economic, organised and international crime to deliver justice and take money back from criminals – the proceeds of crime.

This includes our network of CPS liaison prosecutors deployed globally, who work to ensure that information, evidence, and assets can be secured from abroad, and suspects and witnesses who are located overseas are available to support what we are doing here – our domestic investigations and prosecutions.

The relationships they build and the work they do with international partners provides invaluable assistance in our cases. I wanted to give some examples for that:

• They arrange video links so victims and witnesses in cases in this country who have travelled or moved overseas can still actively engage in the criminal justice process – avoiding delays or even the collapse of a case;
• They help to facilitate the extradition of suspects who have left the country; 
• It’s also about obtaining evidence located abroad – for example, recently the timely return of a key piece of evidence from overseas resulted in a guilty plea from the defendant in a money laundering and fraud case; and
• They help to reunite children with their parents after they have been taken overseas in breach of an order of the court.

Some huge benefits of our liaison prosecutors, the number of which has grown on my watch. We have significantly developed our international work in recent years – so that we can minimise the impact of the location of evidence, assets or individuals on the delivery of justice. That involves dedicated effort on each individual case, but also work to support criminal justice internationally.

I am proud of the work the CPS has done in the international community, for example through the International Association of Prosecutors and other networks, to establish best practice on a range of topics, including supporting victims and witnesses – which supports fairness in our own cases, but also globally.

Just last month the CPS hosted, for the International Association of Prosecutors, the largest global prosecution conference there is. We had 450 lawyers from 90 countries here in London, with presentations by prosecutors such as the team that prosecuted in the George Floyd case in Minnesota. On top of that there were nearly 200 bilateral meetings on individual cases, helping us all achieve justice for victims.

Turning to the wider context in which we operate, we also look ahead to consider how crime might evolve in the years to come – for example, by using futures thinking to consider the potential applications of deepfakes in offending, as well as the potential uses of artificial intelligence and machine learning and the impact that can have on criminal justice – so that we are able to take action today to prepare for tomorrow’s challenges.

When

Moving on to the issue of ‘when’ – and this leads me to the timeliness of our system.

I am proud that when the COVID pandemic hit, from day one in March 2020 the CPS continued to deliver our full range of core functions without interruption.

Of course, it was just not possible for the system to run at its normal scale and pace during the worst periods of the pandemic. By September 2020 the CPS’ live caseload had risen to 80% above the February 2020 pre-Covid baseline. The tireless efforts of CPS staff and of course others across the system helped reduce that caseload significantly but major challenges remain.

At the end of June this year, 2023, our live caseload was around 47% above the pre-covid baseline – but the situation is particularly acute for more serious cases. For Crown Court cases we were 74% above the baseline - that’s an extra 33,000 serious cases in the system than in February 2020.

I have to say, as the end of my term arrives this month, that remains a source of profound concern.

The backlogs undoubtedly challenge the ability of the system to provide a fair service – to victims and defendants. Is a conviction or acquittal after several years fair on the complainant or defendant?

The simple fact is, the longer that cases remain in the system, the greater the likelihood of victims withdrawing from the process. Delays also impact the quality of evidence, as the ability to recollect events fades – that is human, that is natural. This has a significant impact on the timely administration of justice and the rights of the defendant, and that is especially true in rape and serious sexual offences cases. Victims of Rape and Serious Sexual Offences are more likely to be vulnerable, and it is important that they stay engaged with the process and that we minimise the additional strain placed upon them.

What is vital is that the system works collectively – and creatively – to bring down the backlog to manageable levels in the interests of justice for victims, witnesses and defendants. There is no one, single solution – but that cannot mean we accept the status quo. Instead we must try everything:

• We recognise that in all crimes justice must be served, but decisions must be made on the prioritisation of cases and offence types.
• We showed in lockdown how quickly we can embrace technology when we need to – in introducing remote hearings we achieved in weeks what we thought would take years – so now we must make the most of those advances, using remote hearings wherever appropriate to speed up cases.
• We must encourage those who are going to plead guilty to do so as early in the court process as possible. Doing so saves victims and witnesses having to testify; can reduce the impact on the victim; and saves public time and money.

Each part of our justice system is dependent on the rest – so tackling the backlog must be a truly collaborative effort – not each agency looking solely at its own issues. We must recognise the challenges we respectively face and look at what we can offer one another. Solutions must work for the whole system and only together can we provide a fair service to victims, witnesses and defendants.

Closing

I will close by returning to my opening premise: that fairness is essential to our justice system, and that an independent, objective, and national prosecution authority – in the form of the CPS – is essential to upholding that fairness.

Every day, each of our prosecutors discharges this unique responsibility. When they consider complex evidence and carefully assess the public interest. When they decide whether to charge or, just as importantly, not to charge, a defendant. When they explain a decision to a victim or when they apply for special measures to help a witness give their evidence in court. When they are giving early advice to our police colleagues, when they are painstakingly reviewing material for disclosure to the defence or assisting the court on the approach to sentencing a case. Everything they do, everything we do is imbued with our deep commitment to a process that is, above all, fair to everyone involved.

The past five years have been unpredictable and turbulent – but even in the face of adversity, every person at the CPS has worked tirelessly to deliver a fair service for victims, witnesses, defendants, and the communities we serve. I am extremely proud to have had the honour of being their DPP.

Thank you.