This is a reconstruction from notes of a seminar lecture by Ken Macdonald QC, Director of Public Prosecutions looking at the future development of the Crown Prosecution Service.
I have taken as my subject, building a modern prosecuting authority, but I want to start by making a few preliminary remarks about the context within which, I think this discussion ought to take place.
There’s a great deal going on at the moment in criminal justice that directly impacts on the rights of victims and defendants. It seems to me that this is a key place, where the rights of these two groups dissect, and I think it’s a touchstone for the quality of criminal justice, and indeed its moral heart.
It’s an essential debate, the debate that’s taking place presently. Over the past few years the political message, increasingly deployed, has been about putting the victim at the heart of the criminal justice system, by involving victims more in the process, protecting their interests, or their reputations, and achieving more convictions.
It has often been said that the pendulum has swung too far in favour of defendants. Reference is made to the protections afforded to defendants, by developing due process restraints, greater, wider rules of disclosure, and the revised jurisdiction of abuse of process.
As a public funded organisation, which is subjected to spending reviews, much media and occasional political pressure, and one which plays a central role in the operation of the criminal justice system, the CPS finds itself at the heart of this debate, as it should.
In fact a modern prosecuting authority should be at the centre of this debate, so I welcome our involvement, and this afternoon I want to explore with you, as I have many times before other audiences, our understanding as prosecutors of the appropriate balance between defendants and the victims of crime in a criminal trial.
One might add to that, the appropriate relationship between the State and those against whom it determines to apply punitive criminal sanctions.
Of course it is entirely appropriate that criminal justice should be an important part of political and public discourse. And of course it is right that community concerns should be listened to and addressed.
Few sounds are less attractive than well educated lawyers patronising vulnerable victims of crime with inflexible platitudes.
Of course it is the defendant who is on trial and the fairness of the proceedings is paramount. But the community, too, has a legitimate stake in fair outcomes.
The old fashioned idea that criminal justice somehow sits above the public and consists of principles and practices beyond popular influence or argument is elitist and obscurantist.
David Blunkett was hardly a liberal darling. But he perceived a democratic element to criminal justice which, while it mustn’t slip into populism or vigilanteeism, nevertheless serves to temper an increasingly dangerous disconnect between our people as a whole and the traditional judicial and practitioner establishment.
If people, including victims, feel they cannot secure justice through the courts, we are entering dangerous territory.
So this means securing fairness for both sides. So that all witnesses, prosecution and defence, are empowered to give their best evidence in its most reliable form.
The view that only defendants’ rights matter, still quite commonly held by many criminal lawyers, appears to me to be a fundamentalist position that we should move away from.
The fact is that justice is not done by ignoring the interests of victims and witnesses, any more than it is served by riding roughshod over defendants’ rights.
And it is perfectly true that victims have traditionally fared badly within our criminal justice system. They have not been thought of very much and their needs often ignored.
It has very much been a process of turn up at court to give your evidence and that’s it. This is a traditional inadequacy in our system which gives the impression that trials are about ‘getting off’ and that justice is a game in which no one takes the community’s side.
My own view is that liberal commentators need to start by acknowledging that the public have a point. The service given to victims and witnesses has traditionally been appalling. The perception that no-one looks out for them and that it’s only defendants whose rights are taken seriously is not wildly wrong.
Yet it is obviously possible to find a balance which improves the respect with which victims and witnesses are treated, and which secures their appropriate role at the heart of the process, while at the same time upholding defendant rights and decent fair trial principles.
And a properly empowered public prosecuting authority has a key role to play in achieving this essential balance.
I think we should also start by acknowledging the view that a culture of legislative restraint in the area of criminal justice is central to the existence of an efficient, fit and human rights compatible process.
Clearly it wouldn’t bode well for the promotion of a culture of respect for rights, amongst and between citizens, if we ever appeared keen, more or less crudely, to undermine fair trial principles in pursuit of greater numbers of convictions.
On the contrary, it seems obvious to me that the process of winning convictions ought to be in keeping with a consensual rule of law, and not detached from it.
Sometimes it’s important to restate the obvious. The complexities of modern society are such that there can never be an absolute end to crime, and indeed this has never been a sane possibility; all we have at our disposal are different methods of managing the phenomenon to provide maximise safety for our people.
Again it seems self-evident to me that the means we choose should be farsighted, because every time a conviction is achieved, and the battle against crime, in that sense, momentarily won, the quality of that victory can only be sustained and built upon precisely by ensuring the conviction is fair, and therefore safe from being overturned on appeal. Equally, in that sense it may enjoy the widest public confidence.
Ultimately this means sustaining an approach to the prosecution of crime that’s founded in reason, and which welcomes the shield against injustice which due process rules provide.
I have said on many occasions that these are civilising qualities in the state and criminal lawyers should celebrate them, we should not be defensive about them.
A similar tone is found in the United States, where a leading Supreme Court Judge, three decades ago said: ‘implicit in the provisions and tone of the constitution are the values of a more mature society, which relies on morale persuasion rather than force, on example rather than coercion.’
I believe that in our British context the Human Rights Act provides a particular service to the public interest, because it simultaneously rewards the Executive for human rights compatible conduct, and highlights any failings that may exist, by identifying and marking abuses.
The adoption of increasingly sophisticated means of national and international policing and crime control, which is certainly necessary, does not require a corresponding dilution of Article 6 protections, the right to a fair trial, but in fact quite the reverse.
So the Police and Criminal Evidence Act, which was quite mistakenly criticised heavily by civil libertarians when it was passed; its contribution to improving the quality of policing while simultaneously protecting suspects rights, is an excellent example of how due process supports the community’s wholly legitimate interest in prosecuting more people fairly, to save convictions.
Crime control, it seems to me is best seen, not so much as an end in itself, but more of a means of consensually marking out the parameters of desirable social conformity.
If this is to be achieved, at the expense of discarding the basically open and liberal principles upon which the community is founded, and binds itself together, then short-term gains will not necessarily lead to a safer society. In fact the reverse is probably true.
Even if it’s perfectly obvious, as I’ve said already, that the victory against crime can never be absolute, the protection of fair trial rights, which is central to the legitimacy of all forms of social control, can always be achieved, given the political will.
So we need to approach this question of balancing the rights of victims and defendants with a cool head. As Criminal Lawyers we need to be firm about the context within which reforms to our justice system should take place, and I’ll say a little bit more about that at the end.
But I repeat that we also need to recognise that, like all other civil arrangements, concepts of fairness and due process bear regular scrutiny and review, and that the community itself has an absolutely legitimate expectation that its proper concerns will be seriously addressed, as part of this continuing process.
Now, my thesis this afternoon is that in our jurisdiction, in England and Wales, the terms of this important debate, and the tenor of our national discourse on criminal justice, have been badly compromised by our unique failure over the years, unique failure, in terms of any other jurisdiction, to create a properly empowered and publicly respected state prosecuting authority.
I want to examine how this came about, to analyse the consequences, and to say something about what we’re doing, finally to try and confront this failing.
I’m going to argue that a properly empowered, publicly accountable prosecuting authority is an absolute prerequisite to a modern justice system, which is appropriately focused upon principles of due process.
To develop this argument I’ve got to say something also, about what I take to be such an authority’s proper role in that system, even if that role is challenging to the police, on the one hand, and possibly to the Bar on the other.
In order to examine these questions, I think we have to go back a little way into history. How did England and Wales end up in this unique position of not having a proper public prosecuting authority of stature, such as virtually every other fair trial jurisdiction enjoys?
Well, as Professor John Spencer has pointed out, in most fair trial jurisdictions, the 19th Century creation of organised police forces was accompanied by the setting up of professional prosecuting authorities designed to service them. This carried obvious benefits, most basically in terms of degrees of oversight, and supervision of the work of investigators.
It also provided essential quality control at the gate of the trial system. Who was to decide which cases went forward and which did not?
In virtually every other jurisdiction, from the start it was the lawyers, the prosecutors, independent of the investigators, but in our country, prior to the Prosecution of Offences Act, in 1879, which created the Office of the Director of Public Prosecutions, all prosecutions in England and Wales were undertaken, either by private individuals, or by the police.
This led to many particular procedures and rules of evidence, which quite anonymously, and in classic English fashion, survive to this day.
And even after his creation, the new director’s powers were limited to certain serious or sensitive cases, so for another 100 years the vast majority of criminal prosecutions continued to be brought by the police.
There remained no disinterested public authority empowered to conduct routine criminal prosecutions on behalf of the state. Of course the police were advised by lawyers.
The Metropolitan Police, for example, had their own in-house Solicitors Department, and the County Forces, by and large were advised by solicitors employed within the County Council offices, but effectively these lawyers were instructed by the police, not the other way round.
The advice they gave was not in any meaningful sense independent, and it was never binding. No other country that I’m aware of tolerates this model, because it didn’t, and couldn’t, in my view, work.
It was seen not to work, so by the mid 1980s a consensus was arrived at, even in England and Wales, that it was not appropriate for the police, both to investigate and to prosecute crime, there had to be separation.
So the Prosecution of Offences Act 1985 set up the Crown Prosecution Service, creating for the first time an independent prosecuting authority not least of all, independent of the police.
At a stroke the DPP became responsible for all criminal prosecutions commenced by police officers in England and Wales.
Crucially however, the original remit of the CPS was limited and this was absolutely deliberate. Many members of police forces, and senior influential police officers were unhappy at the idea of an organisation of lawyers having any power over prosecution decision-making. They wanted to retain their discretion to bring cases, almost entirely as they saw fit.
This was understandable, and it was powerful opposition, strongly supported, widely supported in the media.
Furthermore, some sections of the Bar well represented as ever in Parliament, were deeply suspicious of the threat that a powerful modern state prosecuting authority might represent to their interests, particularly if it were ever to move into the field of Higher Court Advocacy, as we now are.
And the Bar also raised constitutional objections, along the lines that there was something unsatisfactory about salaried advocates appearing in court to argue cases on behalf of the state.
This of course was all in the context of Margaret Thatcher’s government, when the creation of vast, powerful national bureaucracies was not exactly in vogue.
Essentially therefore, the government bowed in the face of this opposition, or agreed with it, and the CPS was born in 1986, poorly designed with a weak remit, and feebly funded, but what was the extent of its new role?
Essentially, prosecutors would receive files of cases investigated and charged at their discretion, by the police. They would review those files, in accordance with the appropriate prosecution tests. If those tests appeared to be passed, the case would more often than not be handed over to a Barrister to prosecute through the courts.
Alarmingly, even this important task of review was described on the floor of the House of Commons, during a debate, by a government minister, as, quote: low grade legal work, unquote. It is not surprising therefore, that the CPS in its early days found it impossible to attract the best lawyers.
It’s perhaps not surprising that it wasn’t born in a context of public respect, and it’s not surprising perhaps that its early years were seen as years of failure.
But in spite of the modesty of the CPS function, even the responsibility it was given for reviewing files, and so for necessarily deciding that some cases didn’t pass the appropriate tests and should therefore be abandoned, was particularly unpopular with the police, and with some sections of the media as well.
And we see echoes of this still today, when the new prosecuting authority, whenever it reviewed and declined to continue with a case brought by the police, it was characterised as blocking police prosecutions, taking the criminal side, preventing cases going forward into the courts, when the police wanted those cases to go forward.
Such criticism, of course very rarely encompassed any analysis of the strength of the evidence produced, to support the desired charge, but it was surely because of the particular history of our criminal justice system, and because of what I would describe as its essentially ad hoc approach to prosecution decision-making, that this warped view of the process proved to be so deep-seated, and continues in some quarters to this day.
It’s a view of course, which at its most basic fails to understand the distinction between evidence justifying arrest, and evidence sufficient for a prosecution, all the risk [?] to justice and the rights of individuals, and the dreadful financial waste associated with confusing the two.
This fundamental failing clogged our courts for years with endless streams of cases, which should never have been there in the first place, and which were never going to result in convictions, let alone pleas of guilty, and I’ve no doubt at all that it also led to miscarriages of justice.
Finally, this was a model that could never serve as an effective vehicle for upholding community rights, in the face of criminal activity, and the effect on public confidence, and on the reputation of the CPS was predictable.
Of course, history tells us that the creation of the CPS did little to improve public confidence in criminal justice.
This wasn’t because a public prosecuting authority had no role to play in satisfying an important public need, it was because this public prosecuting authority, the CPS, was so emasculated at birth that it couldn’t make any difference, it didn’t have the power.
Actually if anything, the creation of the CPS exacerbated the situation, because an equally damaging and lasting effect of the difficult early relationship between the CPS and the police was a disconnection between prosecutors and the public, particularly victims and witnesses, for whom the police retained sole responsibility.
The truth is that the dye was cast by the CPS remit. The absence of State Prosecutors from police stations and the point of charge, their absence, their absence from the courtroom, their absence from anywhere in between, meant that justice suffered from a continuing imbalance. It was out of kilter, and of course the public noticed.
The CPS, invisible in its backroom offices, were seen as aloof, avoiding direct contact with the public and not explaining prosecution decisions.
In the early days, I’m told, perhaps apocraphically, some CPS premises were even ex-directory lest contact with the people who paid our salaries contaminated the purity of our, albeit very limited prosecutorial decision-making.
Actually, this has been a problem for criminal justice in our jurisdiction, across the professions, the idea that confuses independence with distance. The idea that criminal justice is something apart from and above the public, not to be contaminated by public view, has been deeply undermining of criminal justice in England and Wales.
This is not, I repeat, a call for a surrender to populism, but it is a call for engagement.
The chronic weakness of the prosecuting authority contributed over the years to a climate in which people could make growing capital out of demanding ever more radical restrictions on fair trial rights, in order to ‘rebalance justice’.
But it’s always possible that one day, in the absence of a strong public prosecuting authority tasked with upholding the rights of victims in criminal justice, we’ll face the danger of calls for the system to be inappropriately rebalanced too far in the opposite direction, and resistance to such calls might not always succeed.
So let me sum up the need for reform, and put it as bluntly as I can. It is completely untenable, and corrosive of public confidence in the criminal justice system as a whole, to have a public prosecuting authority that is not respected by the public.
It’s equally corrosive of public confidence to have a prosecuting authority that doesn’t engage with the public, and I judge that it’s not longer tenable for us as public prosecutors, to be complicit in a public perception that we are somehow sandwiched between the police and the Bar, working in the Magistrates Courts, or otherwise playing pass the file.
For us to accept such a role would distort the balance of the system, put at risk the rights of individuals, both defendants and victims, and woefully compromise the quality of evidence gathering. It deeply compromises the prosecutor’s status, and above all it results in a poor service to the public.
So what are we to do? Well, essentially our purpose as we drive reforms now, through the prosecuting authority, reforms both in the way it does its business, and to its basic role, our purpose is to turn it into what it should have been from the start, in 1986.
That is to say, an influential organisation of stature at the heart of criminal justice, with all the powers and responsibilities associated with similar bodies in other jurisdictions.
A properly empowered public prosecution service, as Lord Justice Auld said, in 2001, driving criminal cases from start to finish.
And it seems to me that the first step in this process has been for us to turn our faces resolutely towards the public. It’s obvious that in carrying out their functions, public prosecutors must have the confidence of the public, that’s what brings authority.
So quite contrary to what used to be believed, we have to be responsive to, and engage with the communities that we prosecute on behalf of. This includes engaging properly with victims and witnesses.
Achieving this to the extent necessary will require us to take on additional duties and powers. That is both appropriate and desirable, and we’re beginning to do it. We’ve started, for example, interviewing witnesses before trials begin.
The concept of policing by consent recognises that if a community has confidence that the police will represent and respond to their concerns, there will be greater willingness on the part of the public to sign up for the process, and play a part.
The community becomes activist, and the rule of law is legitimised by its embrace.
In countries where the police are an instrument of state oppression, or are perceived as a coercive force, they are less likely to be able to rely on the practical support the members of the public can give.
Indeed people become fundamentally and dangerously disengaged from the law itself
The same principles apply to public prosecutors. Victims and witnesses are less likely to put themselves to the trouble of reporting crime, making statements, and attending court, if they’re not confident the prosecutor has taken into account their interests in the case.
We do not represent victims when we prosecute cases. We represent a wider public interest. The victim doesn’t have a lawyer the way the defendant has a lawyer, the victim is not on trial, but that is not to say that victims don’t have rights and don’t have interests that need to be protected.
And the degree to which the interests of victims are going to dictate the court’s proceedings brings me on to my second point, because prosecutors must also remain independent. This is an essential element of public trust.
Decisions made by public prosecutors have to be independent and fair, they mustn’t be subject to any inappropriate pressure.
Obviously people in this country don’t want politicised justice, any more than they want prosecutors who merely act as advisors to the police.
Equally they don’t want public prosecutors who simply respond to the latest newspaper campaign. Everybody instinctively understands that decisions taken with an independent spirit are more likely to deliver justice, and that decisions that, for whatever reason lack this essential characteristic, risk miscarriages of justice, and undermine the confidence in the rule of law upon which everything else depends.
Of course independence is not always easy. Our society is usually diverse, that is one of its greatest strengths, but it also means there are communities within communities, which may have different needs, desires, opinions, and morals.
There’s usually a shared interest across communities, in being protected from violence or theft, but there are also circumstances where the position of one group may conflict directly with that of another.
An expression of free speech by one person may be considered threatening or offensive by somebody else, so there are obviously tensions between engaging with the public and maintaining an impartial and independent role. But in spite of these I firmly believe we need vigorously to reposition ourselves as an outward looking organisation.
Perhaps this is most starkly seen in the field of policy development. We spend a lot of time on this, and we don’t move through our work blindly, and we can’t develop prosecution policy without help from the community, so now we go out looking for it.
We’ve done it with our policies on prosecuting domestic violence, prosecuting racist and religiously aggravated offences, prosecuting homophobic crime, and prosecuting serious sex crime.
In essence we go out and consult with community groups, the voluntary sector, government agencies, the police, and others. We take account of everything we’re told before we draft and publish policy documents in these areas, and we invite the people to judge us against what we say we’re going to do.
The idea is that we are properly informed. We understand that to be properly informed about what crime represents to people enables us to be public prosecutors in a better way.
Of course the responsibility for deciding which cases should be prosecuted in the first place is critical, and it affects people’s lives and their rights at a very real level.
Historically it was the police who decided which cases should be charged and passed to the CPS for prosecution. Sir Robin Auld, in his landmark report into the Criminal Court System, in 2001, strongly recommended this power should be transferred from the police to State Prosecutors in the CPS, and that has what has been happening over the last year or so.
The Criminal Justice Act 2003, with strong all party support effected that fundamental reform. In all but the most minor cases, decisions about whether an individual should be prosecuted, and if so with what offence, are made by CPS Prosecutors, not by police officers.
My staff have moved into police stations, to work side by side with investigators, giving advice and counsel where it’s necessary.
Sometimes we help the police to design operations. Sometimes we advise them to conclude operations, or to run them in a different way. We’re a legal resource that investigators need, and increasingly trust.
We’re giving prosecutors the power they should always have had to make the legal calls, which prosecutors as lawyers should make, including the power to rule that in appropriate cases, cases should be diverted away from the courts and dealt with elsewhere.
Obviously this is a significant transfer of responsibility, and it’s a major signifier of the future; it’s a basic building block in a new architecture for Criminal Justice.
In essence prosecutors become the gatekeepers; no case goes ahead unless it gets through a Public Prosecutor first at the point of charge.
You will also see readily that this means any investigation, which defies our advice in its conception or its conduct, is likely to doom itself before it begins, and this I think will change cultures in ways we cannot even yet begin to imagine.
This is a two-way street. Many people express concern about prosecutors becoming involved in working closely with investigators, in the way that I’ve just described, and many civil libertarians have expressed traditionally, particular concern about this, but I must say that I take the view that this is completely a wrong-headed approach. It’s very interesting to me, when I speak to prosecutors in other jurisdictions, and quite recently I was in Canada, talking to Public Prosecutors in Canada.
They see one of their main roles in police stations, as ensuring that Charter Rights, the Canadian version of our Human Rights Act, Charter Rights, are observed in police investigations, because they know that if they’re not the cases are doomed, and I have no doubt whatsoever that the involvement of public prosecutors, from the earliest stages of investigations, right through to the charging decision and beyond, far from being something to fear, will clearly and tangible strengthen fairness and due process.
It makes it more likely that investigations will comply with the rules, and that abuses of the process will be avoided. It will make it less likely that the State brings cases, which shouldn’t be brought, and which are not justified by sufficient evidence, and under this new prosecutor driven process fewer cases are being discontinued, more guilty pleas are being entered, and more convictions are being obtained.
In every other fair trial jurisdiction prosecutors and investigators work together and in cooperation; our failure to follow this model has compromised investigations and it’s compromised prosecutions, and as I’ve said already, I’m sure it’s also resulted in miscarriages of justice.
It’s been bad for victims, for witnesses, for defendants, and for the public, and this is now going to change.
The second major area of reform is an increasing involvement, on the part of prosecutors, with victims and witnesses. Traditionally victims were treated somewhat as pariahs, as were witnesses, by the criminal justice system in this country, and there was little or no communication allowed between prosecuting lawyers and their witnesses.
Those of you who are not lawyers are probably not aware that traditionally, prosecutors were expected to put their witnesses in the witness box, in criminal trials, without ever speaking to them in advance about their evidence, or about any of the issues in the case.
The origin of this rule is quite interesting. It arose in the 19th Century when, as I’ve already said to you, prosecutions were brought largely by private individuals.
The judges didn’t trust private individuals to deal honestly with their witnesses, because a trade developed in bribing witnesses, and so the judges developed a rule that people who prosecuted crime, privately as it was then, mustn’t speak to their witnesses before they put them in the witness box, because bribery and corruption were so widespread.
Public prosecutors are not private citizens; they are members of professional legal bodies, and members of a public prosecuting authority, subject to all the codes of conduct and rules that that status implies.
When I speak to our colleagues abroad about this rule, they literally cannot believe that we operate a criminal justice system, in which prosecutors are forbidden from speaking to witnesses before a trial begins.
Indeed I was told by a Supreme Court Judge in Canada, and those of you who know about Canadian Jurisprudence will know that the Supreme Court of Canada is a body highly concerned with human rights and principles of due process, a Senior Supreme Court Judge in Canada told me that she would report a prosecutor to his professional body for incompetence, if he was to call a witness in a serious criminal case without testing that evidence before the proceedings started.
So we are now in the business of interviewing witnesses pre-trial, and I suspect that in areas like serious sex crime this will lead to a very significant improvement in prosecutions, and in prosecution decision-making.
Rape cases involving defences of consent, where it’s one person’s word against another are amongst the most problematic cases prosecuted in the criminal justice system.
The Acquittal rate in those cases will always be high, because the prosecution have to exclude all reasonable doubt, and that can be very challenging when it’s one person’s word against another.
When you consider, in addition that prosecutors have to make judgements about whether those cases should be brought, without ever speaking to the victim before making that decision, I think it highlights the inadequacy of the present system.
The third area in which significant reform is taking place in the public prosecution service is that prosecutors are beginning to expand their role in advocacy.
Now, this has traditionally been a sensitive area. As you know most Higher Court advocacy is conducted by Barristers: Members of the Bar, in private practice; independent advocates clustered in groups of chambers.
We need, as a public prosecuting authority, to be able to attract the strongest candidates to work with us. We need to move to a position where we are able to offer criminal lawyers all the careers that criminal lawyers want, and all aspects of a career in criminal law.
If you design an advertisement for a criminal law organisation and include within it, you can do everything if you join us, except Higher Court advocacy, it’s almost inevitable that you cut off a whole swathe of the brightest and best of the people who might otherwise come and join you.
So the public prosecuting authority, for that reason, and so that we can have more ownership of our cases, and so that I can hold my prosecutors more accountable for their decisions, are going to do much more Higher Court advocacy than we have traditionally done, and already we see the difference that’s having, in terms of the desire that people outside have to join us.
For the first time ever we now have waiting lists around the country, of lawyers in private practice, who want to join the CPS, and when we recently announced 25 places on a legal trainee scheme nationally, to graduates of law schools, we received, within three and a half weeks, two and a half thousand applications.
This is a very significant transformation in our desirability as an employer. It’s taken place because we are turning the CPS into a proper public prosecuting authority, as that term is understood elsewhere, so that prosecutors in the CPS will no longer simply shift files from one place to another. They will no longer be passing off all the most interesting cases to external agents, they’ll be able to do all of those things themselves, and I think that the result of this will be an increase in the stature of the CPS, an improvement in its ability to attract the best candidates, and a better public service.
The CPS is a public service, and it needs to be subjected to public service reform, as much as any other public service.
Let me just conclude by saying this: It’s worth bearing in mind, when you consider the role of the CPS, and the change in its role, that it’s a public authority for the purposes of the Human Rights Act of 1998, so in carrying out our role we are obliged to apply conventional principles.
That’s a good thing, and it informs the balance, which we strike I think, between defendants and victims.
It also, I think, provides a useful guide when we’re working out what our approach to the sort of reforms that I’ve just been describing should be, and perhaps importantly, criminal justice reform in its broader and wider sense.
As I said before, I’m inclined to agree with my old pupillage supervisor, Helena Kennedy, about this.
When you’re entering a period of change in an area as sensitive as criminal justice, a good starting point is to try and decide what the essence of fairness is. What are the indispensables of a fair trial? What is not negotiable?
I would certainly include in that list the following, and most of them are pretty blindingly obvious: a trial, routinely open, before an independent and impartial tribunal. We don’t really want closed courts and vetted judges, if we can possibly avoid it. Equality of arms, and that’s to say, fairness between prosecution and defence, a level playing field. That’s not negotiable, and the right to full disclosure of the state’s case against you is clearly not negotiable.
A protected right of appeal is not negotiable, and… and I’m sorry I have to make this point, because it seems so blindingly obvious, but I do have to make it… the presumption of innocence, and the criminal standard of proof beyond reasonable doubt, in criminal cases is not negotiable.
It seems to me appropriate that, as head of the prosecuting authority I should say this as plainly and clearly as I can.
I’m sure that all criminal lawyers would agree on the list, it’s a litany of common law rights, in place long before Article 6 was ever thought of, and it’s important to acknowledge them, because it’s clear that necessary reforms in the role of prosecutors, such as I have described, are making prosecutors more powerful, and they will become more powerful still.
This is inevitable as we build an organisation, which begins at last to shoulder its appropriate share of responsibility in criminal justice, but it seems to me that this process is part of a contract, and people are only going to accept it, so long as we make a bargain to hold fast to those values of fairness, impartiality, and as important as any of those, independence.