The Attorney-General has begun the recruitment procedure for the next Director of Public Prosecutions who will take up the position in October when Alison Saunders, the present incumbent leaves her post to go and work for the City law firm, Linklaters.
Mr Attorney is looking for an “extraordinary candidate” to replace her.
The prize, for the lucky man or woman is a £206,000 salary, a stonking great Civil Service solid gold pension, the “Sir Humphrey” status conferred by holding a post “at Permanent Secretary” level and best of all, perhaps, a highly civilised 42 hour week. Many Barristerblogger readers can have a crack at the job. Under the heading “qualifications” the Government website gives but a single word: “legal,” although closer inspection of the website of Odgers Berndtson, the company running the selection on the Attorney General’s behalf, makes it clear that you must have been a qualified barrister or solicitor for at least 10 years. As well as the Bar and Solicitors’ profession Odgers Berndston are actively inviting applications from the judiciary. It would certainly be a first if the next DPP was a former judge.
However, it would be unwise to apply on a whim. There is a humiliating “sift” process to filter out the complete no-hopers, followed by a gruelling-sounding interview panel made up of Sir Jeremy Heywood, the Cabinet Secretary, Sir Brian Leveson, and Monica Burch, formerly senior partner of Addleshaw Goddard an international law firm, and since last July a Non-Executive director of the CPS. Some might think it a little unfortunate that only one member of the panel, Leveson, has had a career practising criminal law.
Even if the panel likes you, the job is still not in the bag, and in fact the worst is yet to come. You must now undergo the embarrassing process of “developed vetting.” That involves amongst other things examination of your health (certain “psychological complaints” will bar you, although frustratingly they don’t say which), your “sexual relationships and behaviour” – the first question an acquaintance of mine was asked when applying for a more junior CPS role was “have you ever paid for sex?” although as one former DPP demonstrated it might have made more sense to ask “will you ever pay for sex?” – your drinking habits, your experience of drug taking, your hobbies and – gulp – your “general political views.” The experience is apparently not meant to “feel like an interrogation” although it will be “searching” and “intrusive.” The Vetting Officers say that they have resolved to “improve the user experience,” which is nice of them. They are also said to be “very experienced and not easily shocked,” which I think is meant to be reassuring to interviewees but, when you think about it, is slightly less so to the general public: it seems to suggest that these professional busybodies will be quite unfazed if they discover that the next DPP is a sexually incontinent, dipsomaniac, neo-Nazi obsessed by military memorabilia with a £500 a day crack cocaine habit.
If you get the job, what should your priorities be?
First of all the organisation of the CPS should be simplified. It has always had a reputation for labyrinthine management structures with baffling layers of regions, areas, divisions, units and goodness knows what else that look good to organogram aficionados but lead in practice to confusion and exasperation.
In practice what happens is that an advocate at court – often one with no previous dealings with the case – needs to find out, for example, why a crucial witness has gone on holiday during a trial. The reviewing lawyer is on annual leave, the case worker is “on a course” and it is impossible to find anyone to talk to. Do you want, asks the CPS voice message, the Gateway team, the Crown Court Allocated Team, the Complex Casework unit or the RASSO unit? As it happens it probably doesn’t matter what your choice is because the only person who can answer your question is receiving training on controlling and coercive behaviour and won’t be back in the office until Monday. Simplification of the organisation should be a priority, but it is not a glamorous task and it will not be easy.
Secondly the new DPP will need to drop the organisation’s tendency to follow fashionable fads. A few years ago we used to hear, not least from Ms Saunders, a great deal of talk about “societal myths” about rape, and 10 of them are still solemnly set out on the CPS website. For example, we are told that rapes do not just happen in “dark alleys” and women did not “cry rape when they regret having sex and want revenge.” Many of the so-called myths were either at least partially straw men, or were not really myths at all. Some rape – obviously not all or most – does take place in dark alleys, and some women have cried rape after regretting sex or for revenge. When juries acquitted, Saunders sometimes seemed to imply, it was because they hadn’t had sufficient education about rape myths. In fact, there are plenty of widely held stereotypes that are just as likely to prejudice juries in the other direction: the belief that certain types of mental illness are diagnostic of sexual abuse, the belief that the human memory is generally reliable, or the belief that a jury can safely tell who out of two uncorroborated witnesses is telling the truth. There are darker myths too, that may well need addressing by judges in individual cases: how confident are you, for example, that every juror will approach the trial of a Catholic priest, a Scout master or an Asian taxi driver without prejudice? Of course, any jury will reflect the constantly changing beliefs and prejudices of society as a whole, that can be seen as either a fault with or a justification for the jury system, but the job of the DPP should be to prosecute, not to bring about societal change.
Thirdly, and it is something that cannot be avoided, the CPS must have more money, and any candidate for DPP is in a strong position to say that he or she will not take up the job unless at least some increase in funding is promised. Last year’s joint report by the CPS and Police Inspectorate revealed a shockingly poor performance over disclosure of unused material by the CPS, much of which can be ascribed to too few employees trying to manage too many cases with too little time and too little training. Well-publicised recent cases have demonstrated just how dangerous this can be to innocent people, and of course disclosure mistakes can also prevent guilty people being convicted.
A cultural change in which disclosure is treated much more seriously is necessary, but it is not sufficient. Since 2010 the CPS has lost one quarter of its budget and one third of its staff. The problem of over-worked and under-trained staff requires more money. Much more.
Fourthly, the CPS needs to face up to the real dangers of wrongful convictions. Contrary to popular misconception it is not and should not be the task of the CPS to pursue convictions for their own sake. A prosecutor’s job is to lay evidence fairly before a court and, where appropriate, to argue that the evidence proves guilt conclusively. Ms Saunders’s assertion some weeks ago that she did not believe there were any wrongly convicted people in prison was complacent and, frankly, absurd. The police make mistakes, forensic scientists make mistakes, prosecutors make mistakes, defence counsel and solicitors make mistakes, judges make mistakes and juries make mistakes. Even when it is working well our criminal justice system is far from infallible, and at the moment almost no-one involved in it thinks it is working well. There are likely to be many – no-one can possibly know how many – innocent people in prison with little hope of ever clearing their names, or rebuilding their lives. The next DPP could do worse than follow the example of some American DA departments and set up an Innocence Unit within the CPS, specifically charged to investigate possible miscarriages of justice, especially those that may have been caused or contributed to by prosecutorial errors or wrongdoing.
Ms Saunders may not have been a great DPP, but she does have a number of fine qualities. She is brave: her decision not to prosecute the senile and (we now know) dying Lord Janner was over-turned by an independent reviewer, but Janner’s death and the subsequent collapse of the civil cases brought against him both suggest that her original decision, though unpopular, was entirely right. She is always cool under fire, another fine and necessary quality in a DPP, even when she is wrong. Her successor will need these qualities above all others because it is absolutely certain is that soon after taking up the leadership of a battered and somewhat demoralised organisation he or she will be have to take some enormously difficult decisions. Very often the right decision will be that which is the most unpopular.