Max Hill QC, Director of Public Prosecutions, Speech to the Bar Council - 12 January 2019

Thank you for inviting me to speak to you today. It is a real pleasure to come here this morning at my friend Richard’s first full Bar Council of his year in the Chair. I want to start by wishing him well throughout his time, and then the same for my friend Amanda, who will make another fine Chair of this Council for 2020. You are in the best of hands.

I have been a committed member of the Bar Council for two lengthy spells in the past, as CBA Chairman and then as South East Circuit Leader. My Bar political work commenced in the 1990s with Bar Mess and then more junior Circuit roles, and I hope that you will see me now as a friend, not a stranger. You can trust me to listen to your views and arguments, and to do whatever I can to help.

But remember, they must be your views and your arguments. I am incredibly lucky to be DPP, I am responsible for almost 6,000 staff nationwide, and it is those staff and all of the work of the CPS that have to be my first priority now. So the Bar must develop its own arguments, just as you did when I was an elected leader for you. I can’t make the running for you; but I will always listen to what you have to say.

It is very important to me that the CPS maintains its good relationship with the Bar Council and members of the external Bar in general. I hope we can work together, openly and constructively, to our collective benefit.

I want to start today by talking a little about my priorities for, and first impressions of, the CPS, before going on to the interaction between the CPS and the external Bar and - of course - the issue of fees.

CPS priorities and impressions

Like all criminal barristers in the room I have - of course - interacted with the CPS throughout my career. I had consistently been impressed by what I had seen from the perspective of trial counsel - and in the 10 weeks since I became DPP that has only been reinforced.

Why? Because right across the organisation I have found dedicated, enthusiastic and talented people determined to deliver justice. I am very privileged to lead them.

We all know there are things that can be improved - we recognise that mistakes have been made - but the vast majority of work done day-in, day-out, is done well.

As DPP I want to build understanding of and confidence in the work of the CPS - to build recognition that we provide robust legal decisions and we successfully bring cases to court every day.

To do this I will be focusing on our casework - on disclosure, yes, of course, but also the quality of casework more broadly. My ambition is to make sure that we, in the CPS, achieve the highest quality of service that is possible.

And I will be supporting CPS people - in their work, in their careers and in their wellbeing.

Advocacy

But supporting CPS people does not mean that we won’t also be working with the external Bar, which is essential to the effective operation of the criminal justice system.

I know first hand the quality and dedication of those at the external Bar. I want to make clear that support for them, support for you, 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. I want to continue the effective balance that was struck by my predecessor in terms of internal and external advocacy - which as you know is set out in our Advocacy Strategy.

The strategy’s three principles are:

• We will instruct the right advocate for the right case.
• We will develop, support and mentor advocates, providing opportunities for career progression.
• We will maintain effective partnerships with external providers and stakeholders.

Career development

Let me focus for a moment on career development – for our internal advocates we have recently introduced a new induction programme and are developing a comprehensive training programme for every stage of an advocate’s career. And because we want to provide members of the external Bar with access to relevant training, we are adding new content to our External Prosecution College, which is available to all members of the Advocate Panels as well as solicitor agents.

But I also want to see the CPS and external Bar work more closely together on career development.

I know I served for quite a long time at the external Bar before making the move to the CPS – a mere 31 years - but I believe individuals and our respective organisations could benefit if others moved earlier and more often between roles. I recently asked to be told about a number of Bar secondees we have in the CPS at the moment – and I understand we receive very positive feedback about their experiences. So I would like to see more of these secondments, as well as permanent moves, in both directions.

Advocate Panels

Another key element of the advocacy strategy is of course the Advocate Panels - and I’d like to welcome those new members who joined in December.

For anyone who is not familiar with them, the CPS Advocate Panels provide a time-limited list of quality-assured advocates to undertake criminal prosecution advocacy for CPS in the Crown Court and Higher Courts.

Following last year’s application window, we now have a total of 2,907 advocates on our general crime panel at levels 1-4. Of these, 48 were new joiners and 202 were upgraded to a higher level.

Preparations ahead of the 2020 Advocate Panel refresh will continue. The CPS wrote to Panel members in May last year confirming the fee-earning thresholds applicable to secure an invitation to join the next iteration of the General Crime and Rape Panel - the 2020 Panel.

I should also mention that we are undertaking a review of our Advocacy Policy and Guidance over this coming year. This will include a review of the National Standards of Advocacy, CPS-Bar Standards and Advocate Panel Members Commitment. We will ensure that you are kept informed of the progress of all of this work.

Funding/fees consultation

Now, of course, I cannot talk about our external advocacy arrangements without discussing fees – which we will be reviewing. The 2012 scheme, Scheme C, is ripe for review and we have already held an early meeting before Christmas to open discussions. Some of the senior members here were present.  

I do understand your request for increased fees. I have fought these battles on behalf of the Bar in the past - in fact I imagine some of you will recall me doing just that at the Bar Council meeting back in March 2012. I have checked what I said then, to my predecessor Keir Starmer, on the eve of the introduction of GFS Scheme C. These were my words - if you have access to the minutes of the meeting in 2012, you can read with me: ‘It is our view that, if these fee rates are implemented, there is a substantial risk of significant harm to the public interest in that the pool of independent advocates of sufficient experience and ability willing to prosecute, at these rates of remuneration, is likely to diminish significantly’.

But as Keir explained then, so I must explain now - we, all of us, have to understand the financial position the CPS faces.

The CPS budget has reduced by 37% in real terms since 2010. Staff numbers have fallen 30%. By March 2012, the meeting I just quoted from, again I have checked, Keir reported that CPS staff which stood at 8,800 in December 2010 had reduced to 7,100. What neither Keir nor I or anyone else present were to know in 2012, but we know now, is that the CPS operating budget would continue to be squeezed hard, and overall staff numbers inherited by me two months ago are below 6,000.

So, any overall increase in prosecution fees would cost the CPS money that is not currently in our budget. That is the hard fact.

But yes, we are committed to reviewing the Graduated Fee Scheme - and we will do that in consultation with you. Having once more checked back to 2012, Keir sounded a warning, I quote from the Bar Council Minutes ‘Keir Starmer QC questioned the efficacy of the governance procedures within the Bar Council which allow a working group to negotiate on behalf of the Bar, but which does not appear to represent its constituency. This is the second time since he was appointed DPP that the CPS has worked with the Bar Council on a project, a compromise is found and then it all unravels at the end (the first example being the CPS Panels)’ end quote, from Keir Starmer, seven years ago.

We will listen. But please heed the governance warning; we want to hear from you on a truly representative basis; I suggest that means the Bar Council and the CBA as one, rather than separately; that is my suggestion but is a matter for you. And I ask that you listen too - and I ask that you understand that there will be limitations on what we can do. A lot will depend on the overall funding situation for the CPS that will be determined through negotiations in the next spending review that will happen later this year; timing and possibly outcomes are Brexit-affected, just like everything else.

Any remuneration scheme must be affordable now and in the longer term and take into account anticipated changes in future caseloads and mix, as well as the need to attract able advocates to undertake prosecution work.

As I mentioned, a team from CPS HQ did have a constructive initial meeting with representatives of the Bar Council, CBA, Circuit Leaders and the Young Bar at the end of last year, and this will help shape the review of the Graduated Fee Scheme. We will update you on timings for that soon, and will ensure you are kept informed and engaged.

As to my 2012 warning which I quoted about the quality of prosecution advocates willing to accept Scheme C, of course I understand that we must watch this over time; but I do have to point out that there continues to be no shortage of applicants to our Panels, as the updated figures I have given you show.

Payments issue

I do also want to mention the recent issue we have had with the payment of fees - and to apologise to anyone who was affected by a delayed payment.

We faced a technical software problem just before Christmas, which proved much more difficult to resolve than originally anticipated. It resulted actually in payments to around 50 barristers outside our 30-day terms. Our finance team tell me that over many years of use we have never had a problem with the system that has not been resolved very quickly - this was, I ask you to accept, a first.

We are absolutely committed to the timely payment of fees and I know our good record on this is recognised by many at the Bar.

I want to say that we are sorry we did not meet our standards on this occasion but would hope it is seen within the wider context as an isolated issue outside our control.

I should add that I do apologise that we did not communicate to you earlier about this issue, although it arose just as Christmas was upon us all. Should such a problem happen again in the future we will make sure the Bar Council receive early notification.

I’m grateful to the Bar Council for getting in touch with us on the issue, and for your offer of assistance - I hope that that is a way we can continue to work together.

And so that is a theme on which I would like to end - maintaining a constructive working relationship between the CPS and the Bar is crucial for us both. I am committed to that and look forward to working with you all in the months and years ahead.