May 2013 — The Role Of The DPP and Crown Prosecution Service
Minutes of the All-Party Penal Affairs Parliamentary Group on
14 May 2013
Prosecuting in the public interest?
The role of the DPP and the Crown Prosecution Service
Speaker: Keir Starmer QC, Director of Public Prosecutions.
Paul Goggins MP, in the chair
Baroness Bottomley of Nettlestone
Lord Carlile QC
Baroness Howe of Idlicote
Baroness Linklater of Butterstone
Fiona Mactaggart MP
Paul Maynard MP
Paul Goggins MP welcomed everyone to the meeting, particularly the speaker. He did not remember any Director of Public Prosecutions addressing the meeting before. All would know Keir Starmer, an outstanding human rights lawyer, and DPP since 2008. Their paths had crossed slightly when he had been Minister in Northern Ireland, where Keir had been human rights advisor to the police. His advice had always been greatly valued. In his current role he had had to deal with increasing numbers of high profile cases and issues. He had been impressed by the way in which the CPS, under Keir Starmer’s leadership, had always been mindful of the needs of the most vulnerable in society. The meeting was looking forward to hearing his presentation.
Keir Starmer QC thanked the Chair for this introduction and said it would probably be most helpful if he gave a brief introduction to his work, and then moved into a debate about whatever members really wanted to talk about. He continued: ‘By way of introduction, over the last month you have probably been aware of a number of cases that we have been prosecuting. We secured the conviction of Melanie Smith, for starting a fire in Prestatyn that killed five members of the same family, and shortly after that, the conviction by plea of Stuart Hall for fourteen indecent assaults. We authorised rape charges against the Coronation Street actor William Roache, who was in court today, and indecent assault charges against Max Clifford. Also in the last three weeks we started the trial of Mark Bridger for the murder of April Jones, and of course the trial of Stuart Hazell for the murder of Tia Sharp, which ended with his changing his plea yesterday. He was sentenced today to life, with a minimum of 38 years. Very much up to the minute, the verdicts have just come in at the Old Bailey for the so-called Bullfinch case, the child sexual exploitation case from Oxford.
All those cases have attracted widespread media attention, but there have obviously been many thousands of other cases passing across our desks in the same period. To give you examples of some of those, we have secured the conviction of a Gateshead man for the murder of a ten week old boy, and last week we authorised the charge against three men for attempted robbery, and started the trial at St Albans of two solicitors and a barrister for mortgage fraud. That gives you some sense of the breadth of the work that we do.
The CPS, as most people in this room will know, was set up in 1986. We came rather late to the notion of a national prosecuting service. It is independent of the police and of judges. We have 13 regions or area offices across England and Wales, and we have a number of specialist case work divisions, covering issues such as counter-terrorism, organised crime, fraud, special crime. More recently we have the Welfare, Rural and Health Division. That’s interesting because in the last couple of years a number of government departments have transferred their prosecuting functions to the Crown Prosecution Service. So now we have a CPS which is quite different to the service when it started. Back in 1986 it was envisaged that we would be dealing with cases investigated by the police. Now we have cases investigated by the police, by Her Majesty’s Revenue and Customs, by SOCA, by the IPCC, by DWP, by DEFRA. There are a lot of investigating bodies feeding into the work that we do and the breadth of coverage is much wider.
I have got about 7,000 employees, which is quite a lot less than I had when I started in post in 2008, and year on year we deal with about 800,000 defendants through the magistrates court, and about 100,000 through the Crown Court. So the scale of operations is reasonably large. Today I thought it would be helpful to open up the debate by reference to the way in which we approach the decisions we have to take.
The critical document for us is the Code for Crown Prosecutors, of which you will probably be aware. It sets out the approach that prosecutors should take when deciding whether or not to bring proceedings against any given individual. There are two stages to the process. The first stage is whether or not there is enough evidence to provide a realistic prospect of conviction. That is a purely legal judgement call. The second stage is: if there is enough evidence – a big ‘if’ – is a prosecution required in the public interest? So stage one is a legal test; stage two is the exercise of discretion – very different questions. Stage one must come first, and should always come first. We have on occasion been put under pressure, certainly by the media, to ignore stage one and move straight to stage two. The best example I can give you of that is the tragic case of Ian Tomlinson, who you may remember was pushed to the ground by PC Harwood, as he then was, and tragically died. When we first looked at this case, there were really difficult problems of causation, caused largely by the pathologist who had conducted the first post-mortem. In a nutshell, he took critical samples from the body which he immediately destroyed, so that nobody else could ever again test his findings, or properly test his approach. When we first looked at that case, we formed the view that we would not be able to prove causation, but agreed to review that decision after the inquest. You would be surprised at the number of people who wrote to me and harangued me, saying that we should have ignored whether there was enough evidence, moved straight to the public interest, and brought proceedings anyway. But the code is absolutely clear. You must have enough evidence. You then move to whether the public interest is satisfied. In that particular case, at the inquest, the original pathologist changed his evidence and further evidence was put before it. That allowed us to do as we had said we would do, and review our decision. We then took the decision to prosecute PC Harwood, and of course in the end he was acquitted. But that is the best example of some of the tensions that arise at the evidential stage.
The public interest stage is very interesting. Not all jurisdictions have a public interest stage. In some jurisdictions, Poland for example, the only question for the prosecutor is whether there is enough evidence for the case properly to be put before the court. There is no discretion for the prosecutor not to proceed. It is for the court to decide. Hence a lot of seemingly trivial cases go before the court. We do have discretion, and so we can decide whether it is in the public interest to actually bring charges where there is enough evidence. That is obviously a very heavy responsibility, because our decision bears heavily upon the suspect as to whether or not they will go into the court process, has ramifications for victims and witnesses, and for the public at large. For that reason, the approach to determining whether it is in the public interest to prosecute is set out in the Code for Crown Prosecutors, and that requires us to look at factors such as the seriousness of the offence, the level of culpability, the harm caused to the victim, the age of the suspect, whether prosecution is a proportionate response, and whether sources of information need protecting.
These are very broad factors, and until recently they were applied to every case regardless of the nature of the offence in the same way. This happened until in 2009 a woman called Debbie Purdy brought a case before the court saying: ‘the code is all very well, but the factors are so broad that I can’t tell whether my partner is likely to be prosecuted for assisting my suicide should he do so in the future. I think the DPP should be required to be more specific about the particular factors that apply in that kind of very sensitive case’. That argument found no favour in the High Court, no favour in the Court of Appeal, and full favour in the House of Lords, where the decision was that the DPP should produce a policy which set out more particularly the factors that he would take into account for or against bringing charges of assisting suicide. So it was a very important case, the first of its kind requiring offence-specific policy. And as a footnote, for those of you who are interested, it was the last decision of the House of Lords in the judicial committee down the corridor, before it moved to the Supreme Court across the square.
That started the process that we have gone through, in a number of different instances now, of offence-specific, or theme-specific, guidelines indicating how we will exercise the discretion over whether or not to bring proceedings. For assisted suicide we drafted interim guidelines then final guidelines, which were in force for three months during which period we consulted on them, and then produced the final guidelines. These have been in force since February 2010 and they, as the House of Lords required, set out the factors tending in favour of prosecution for assisting suicide, and those tending against, so that individuals have greater clarity about the approach we take. From a prosecutorial point of view, those guidelines have been very helpful. We have had quite a number of cases since the guidelines have been in place, and having the ability simply to work through them to come to decisions has, I believe, greatly assisted our ability to be completely consistent, but also to be open about the approach that we are taking in those cases. I am well aware that this is an area where people have very strong, and very different views, which are deeply held by a number of individuals and bodies. But having been required by the House of Lords to produce specific guidance we have found them to be of great help.
Another issue we had to tackle, by way of guidelines, was what approach we should take to the prosecution of journalists. This was not an issue until two or three years ago. The number of journalists who fell to be considered for criminal offences arising out of their work as journalists, rather than other issues in their private life, were very few. Before two years ago I had one since I was DPP. In the early part of last year we had 50 plus people on bail as a result of the hacking and related criminal investigations, and quite a number were either journalists or those who had been arrested because of what they had been doing with journalists. We recognised that we needed to have a sensible approach to how we were going to decide those cases. The difficulty there was balancing the public interest in what the journalists were seeking to do against the public interest in upholding the criminal law when there was sufficient evidence. Here is an example of why this is a very real issue.
Soon after the Bribery Act 2010 was passed, the Sun newspaper thought it had identified a court clerk who was open to bribery in Redbridge Magistrates Court. They were right about that. They tested their theory by agreeing to meet said clerk in the car park of Redbridge Magistrates Court, where they handed over quite a bit of cash to make an offence go away. The individual was promptly arrested, the evidence from the Sun was passed straight to the police, and we secured a conviction very swiftly. Under the Bribery Act, the Sun journalist probably committed an offence in bribing the clerk in the first place. Although that case did not reach our desks – it was not a real case – the prospect of that offence being prosecuted would not have enhanced faith in the criminal justice system. So we needed some guidelines which allowed us to balance the cases where journalists have broken the law and proceedings did need to be brought, and cases where proceedings did not need to be brought. Since the guidelines, the best example is Amelia Hill of the Guardian who was the journalist who was breaking stories about Operation Weeting itself, as part of the Guardian team that was reporting on hacking. In that case we decided not to prosecute.
The third example where we have gone down the road of issuing guidelines about how we will exercise our discretion is in relation to social media. Again until reasonably recently we had not had any cases where messages and communications sent by social media – Twitter, Facebook, YouTube – had fallen to us to consider in relation to the content of what was being communicated. In recent months and years, a growing number of cases have come to our attention. We then started analysing the law and the size of the problem. I won’t give you the full history, but back in the late 1800s when telegrams were the quickest form of communication, Parliament passed a law prohibiting false communications, if they were sent with the intention to annoy or distress someone. That was apparently because some mischievous souls used to send telegrams to other parts of the country indicating, untruthfully, that a member of the family was dead. Because there was no phone, or quick way of checking, the family were in great distress until they could find out the truth. So Parliament thought ‘we will make it an offence to send a false communication’.
Separately, the telephone was developing. The first big developments were in the late 1800s. In the 1920s and 30s Parliament thought the idea of telephones might take off. There were 200 exchanges at the time. In those days nobody had mastered direct dialling so you had to go through the exchange. There were very few people with telephones, but if you wanted to telephone someone in Manchester or Leeds, you had to dial in to the exchange, tell them the number you wanted, the exchange would then dial through to the next number, and would put the two together and you could have a conversation. The number of exchanges was growing and the staff in the exchanges were mainly women. Parliament thought that all women should be protected from any grossly offensive communications that might take place as they were working away in the exchanges. So it passed a law making it a criminal offence to communicate anything grossly offensive by way of a telephone. That offence has survived until today, but the description of the medium has changed, so a telephone has become a ‘public telecommunications system’, and in 2003 that became a ‘public electronic communications system’. That was Parliament simply keeping up with the law it passed in 1935.
In 2004 Facebook was established, and in 2006 Twitter was established – both American private companies by the way – and in the case of Chambers versus the DPP, a Twitter joke about a bomb at Doncaster Airport, the Lord Chief Justice ruled that because Twitter was accessible via the internet it was caught by the old 1935 offence, re-enacted in 2003, because it was passed through an electronic communications system. That brought all the social media within the ambit of the two offences, one created in the 1800s to deal with telegrams and the other created in 1935 to deal with exchange staff, and made any communication by social media that was either grossly offensive or false with the intention of annoying someone, criminal offences. To give you an idea of the size of the issue there are I think 350 million Tweets a day. If only a small percentage of those are either false with the intention of annoying someone or grossly offensive then you can see that there is a problem, let alone whether or not it would be democratically healthy to prosecute. So we issued guidelines on social media making it clear that only cases that got over a very high threshold would be prosecuted.
The fourth example is the child sexual abuse guidelines, on which we are working at the moment. Although good work has been done on child sexual abuse cases in the last few years, culminating in some important successes recently, there is still a lot of work that still needs to be done. We are working with the police to produce guidelines to settle once and for all what the proper approach should be in those cases.
I will stop there, save to say this. The point of having guidelines, and of being higher profile as an organisation, is this: that if you exercise important powers and you have a discretion, the only way you can be properly held to account is if you indicate up front how you are going to approach a problem, so people know the facts you are going to take into account; and if you are then prepared to go out afterwards to explain your decisions, so that other people can test themselves whether you made the decision in the way that you said you would, rather than on some unexplained basis which otherwise has to be taken on trust. So we deliberately go down the road of being open and transparent about how we make our decisions. It would probably be sensible to stop there and invite discussion.’