Speech by Max Hill KC, DPP, to the JUSTICE Annual Human Rights Law Conference

Opening

Good afternoon, and thank you for the opportunity to speak here today. 

My contact with JUSTICE goes back many years to when, as chair of the Kalisher Trust, I enjoyed conducting interviews for the excellent internships JUSTICE offered through the Trust. I also delivered the Tom Sargant lecture in my role as Independent Reviewer of Terrorism Legislation in 2017, and am pleased to be back with you now.

As my five-year term as Director of Public Prosecutions nears its end, I have been reflecting on the role of the Crown Prosecution Service within the justice system of England and Wales. And I keep returning to the importance of independence.

Because I believe an independent prosecutor – applying the law fairly and objectively, without bias, and without external pressure intended to influence decision-making – is essential for justice to be served. And so an essential component of a fair society where all are equal under the law.

Independence was one of the founding principles when the CPS was created in 1986. It drew me to the role of DPP, and – alongside fairness – has been central to how I have led the CPS through the last five years, which of course brought challenges no one had anticipated.

So today, drawing on experiences during my tenure, I want to highlight how the CPS operates independently, before going on to discuss how we balance that independence with being collaborative, responsive and adaptable to ensure we deliver the best possible service to the public we serve.

From whom we are independent and why

So independence is fundamental to the Crown Prosecution Service – or CPS – but from whom are we independent, and why?

First, we are separate from every other government body and our prosecution decisions are independent of political influence.

The first General Principle of the Code for Crown Prosecutors, which governs the work of the CPS, addresses this explicitly: “Prosecutors must be free to carry out their professional duties without political interference and must not be affected by improper or undue pressure or influence from any source.”

Our decisions always follow the legal test set out in that Code for Crown Prosecutors – in deciding whether to charge someone with a criminal offence we objectively consider:

1. Does the evidence in the case provide a realistic prospect of conviction? And;

2. Is it in the public interest to prosecute? This is a reasoned assessment, diligently made by skilled prosecutors, based on a set of questions clearly defined in The Code – and for particularly complex issues, in bespoke legal guidance. It means asking questions like how serious the offence is, the harm caused to the victim, the impact on communities and whether prosecution is a proportionate response.

The Attorney General is responsible for superintending the CPS’ performance – scrutinising how the CPS is run – but has no involvement at all in the vast majority of our cases.

Early in my tenure I was pleased to work with the then Attorney General to agree a new framework agreement for how the CPS and Attorney General’s Office work together.

The agreement maintained the independence of the CPS while outlining the role of the AGO in overseeing our performance. It clearly sets out that the Law Officers do not participate in CPS casework decisions except in a small number of clearly defined circumstances, principally involving national security. For example, for a small number of specific offences, the Attorney’s specific consent is required to bring a prosecution.

The framework also sets out that I will alert the Law Officers to any case which I consider to be particularly sensitive; which may set precedent for prosecution or criminal justice policy or practice; or which reveals systemic issues for the framework of the law or operation of the criminal justice system. However, it is clear that: “The decisions in these cases remain for the Director.”

We also work openly with, but cannot be directed by, other democratically elected representatives, such as Members of Parliament, local councillors or Police and Crime Commissioners.

This political independence is essential in a democracy, so everyone involved can be confident that cases have been brought fairly and lawfully.

Our independence from government also works the other way. Just as prosecutorial decisions are for prosecutors, political decisions are for ministers. We can and do use our experience to provide advice on the operational implications of law and policy proposals – and help to find operational solutions to challenges. We do so regularly – and I have been pleased to increase our engagement with government during my tenure. But we do not interfere in political matters. Parliament legislates, and it is our duty to apply that legislation.

Second, we are independent of investigators. This principle was fundamental to the creation of the CPS, before which most prosecutions were led by the police. A Royal Commission concluded in 1981 that:
a. The police should not investigate offences and be responsible for their prosecution;
b. Different police forces around the country used different standards to decide whether to prosecute; and
c. A significant number of cases were coming to court that should not have progressed to that stage: 43% of cases resulting in acquittal failed because the prosecution was unable to adduce sufficient evidence to make a prima facie case.

As a result, the report 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; and make the conduct of the prosecution the responsibility of someone both legally qualified and not identified with the investigative process.

Importantly, the Commission said police and prosecutors should have "... unity of purpose but independence of responsibility..."

It is worth noting that this did not lead to the CPS charging all criminal cases. Police officers have the power to make their own charging decisions in around 65 per cent of all crimes prosecuted in England and Wales – but the CPS is responsible for all more serious cases.

These include serious violence, rape, and serious sexual offences, but also other crimes like domestic abuse which need an expert prosecutor’s eye to get right and so deliver justice – for suspects, victims, witnesses and the wider public we serve.

Because ultimately police and prosecutors want the same thing – criminals brought to justice, victims and witnesses treated well, our communities to be safe.

And we can best provide that by each playing our role – each playing to our strengths.

Third, prosecutors are also independent of the courts in which they prosecute. Crucially, our role in court is to represent the public interest. We make a case against a defendant, while upholding their right to a fair trial, for example through disclosure. We support victims and witnesses, generally and specifically through arranging special measures to support those who are particularly vulnerable. But we do not represent any individual or group. We represent the public interest, which is for justice to be served.

Independent and…

So our independence is vital – but it is not a shield against scrutiny, nor a barrier to engaging with partners or our communities on matters of shared interest.

Because we focus on being independent and collaborative, responsive and adaptable.

Collaborative

Starting with collaboration – just as independence is central to our function, our success as a prosecution service lies in the quality of the relationships we have with our partners. So we invest in both national and local strategic partnerships including engaging with Government, Parliamentarians, communities, and our local, national and international criminal justice partners – while maintaining our independence.

And I have made this a priority throughout my tenure as DPP. This has included playing an active role in cross-government discussions, for example through the Criminal Justice Board and Action Group, the Rape Review Steering Group and various roundtable discussions on specific issues.

And it has also involved extensive joint working across the criminal justice system.

Our joint work with the police is transforming the way we deal with rape cases – allowing us to build stronger cases and increase the number of cases going to court.

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

There is still more for us to do, but our progress shows the benefits of working collaboratively.

Responsive

We also need to be responsive. Our independence cannot be an excuse for cutting ourselves off: we must listen carefully to the communities we serve.

We do this by consulting stakeholders and the public on the guidance we develop for our prosecutors, and seeking feedback on our performance. During the pandemic – which started less than 18 months into my 5-year term – we quickly adapted to new ways of engaging with the people we serve, for example shifting local scrutiny panels and national consultation groups online, which actually increased participation across areas and with some under-represented groups.

We also take a proactive approach to identifying and addressing potential issues. For example, although previous studies of disproportionality in the criminal justice system have reflected favourably on the CPS, we wanted to ensure that we were holding ourselves rigorously to account. We therefore commissioned independent research from Leeds University, to examine our decision-making to identify any disproportionality in the outcome of CPS charging decisions.

The research so far, 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.

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 on this work – I am grateful for JUSTICE CEO Fiona Rutherford’s membership of that group.

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 to manually review 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 and will inform the development of a national scheme to monitor Joint Enterprise cases by sex, ethnicity, and age across all CPS Areas.

Adaptable

We also – perhaps now more than ever before – need to be adaptable.

Like everyone, we had to adapt when the COVID pandemic hit. Despite immense challenges, from day one in March 2020 we continued to deliver our full range of core functions without interruption, rapidly embracing new remote court hearings – achieving in weeks what had been expected to take years.

But this is not the only challenge we have faced. The crime threat is continuously growing and evolving, with criminal networks quickly exploiting advances in technologies, and operating increasingly across borders. 

We created a united team within the CPS to tackle this – bringing together specialists in economic, organised and international crime to deliver justice and take money back from criminals.

This includes our network of CPS liaison prosecutors deployed overseas, 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 domestic investigations and prosecutions.

We also look ahead to consider how crime might evolve in the years to come – for example, by using  futures thinking techniques to consider the potential uses of deepfakes in crime, as well as potential uses of artificial intelligence and machine learning in criminal justice – so that we are able to take action today to prepare for tomorrow’s challenges.

As crime changes, so does the type of evidence we see – and that also has a big impact on our work.

When I became DPP there had been a crisis in 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 duty has become more difficult in recent years due to the volume of data potentially available in modern cases – for example from computers, smart phones and CCTV.

I have put sustained focus on tackling this through joint work with the police, led by our Joint Operational Improvement Board. 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, and much more regular engagement between police and prosecutors to make sure we identify potential material and share with the defence as early as possible.

We will need to continue to adapt – to the changing nature of crime, to developments in technology and to delivering justice across borders – and I am confident we can do so without affecting our independence.

Close

It has been my privilege to lead an organisation of talented people committed to delivering justice through independent and fair prosecutions – while engaging with those we serve, responding to feedback and adapting to the world around us.

Thank you.