Justice Select Committee
Oral evidence: The work of the Director of Public Prosecutions, HC 662
Tuesday 1 November 2022
Ordered by the House of Commons to be published on 1 November 2022.
Members present: Sir Robert Neill (Chair); James Daly; Maria Eagle; Laura Farris; Paul Maynard; Dr Kieran Mullan; Karl Turner.
Questions 1 - 77
Witness
I: Max Hill KC, Director of Public Prosecutions, Crown Prosecution Service
Witness: Max Hill KC.
Chair: Good afternoon and welcome to this session of the Justice Committee looking at the work of the Director of Public Prosecutions. We are very grateful to the Director, Max Hill, King’s Counsel, for joining us.
We will make our declarations of interest. I am a non-practising barrister. I ought to say that Mr Hill and I have known each other for many years as colleagues and friends at the Bar when we were both in practice.
James Daly: I am a practising solicitor and partner in a firm of solicitors.
Maria Eagle: I am a non-practising solicitor.
Karl Turner: I am a non-practising barrister.
Q1 Chair: Welcome, Director. Thanks very much for coming.
Perhaps we may start with some of the statistics. There has been a lot of talk about the size of the backlog in the Crown court, in particular. We will be interested to hear your take on the CPS’s estimate of the size of the backlog.
Max Hill: It would be fair to say that in March to July 2020 everybody involved in justice—certainly in criminal justice—believed we were going through a once-in-a-lifetime event, given the scale of lockdown and therefore the scale of live cases going through the courts that were suspended while the courts were temporarily closed, even though that closure was quite short.
To give you the figures, in February 2020—the month pre-covid—what I would call the baseline figure for the Crown court was 43,400 live cases between charge and trial. That number rapidly went up, and by August 2020, when the courts were reopening, it had just cleared 70,000—70,200.
At the end of September this year, two years later, the backlog was 74,587. The enormous effort on behalf of everybody involved—this is not a partisan point for the CPS, but in the Crown Prosecution Service, the police infrastructure nationwide, the Courts Service and the judiciary—to try to control and bring the backlog down towards the February 2020 baseline had been partially successful, and I can go into that if you wish, but we then found that there had been a second uplift in case load taking us very close to 75,000 cases.
I am afraid that the position is that we must now expect to deal with that backlog for a considerable period to come.
I shall pause there, but those are the overall headline figures.
Q2 Chair: What has driven that second wave?
Max Hill: There are a number of features. Clearly, everyone would expect me to mention the Bar strike, recently concluded, but it would be unfair to attribute the current backlog to the Bar strike. I specifically do not say that. It is a factor in 2022.
The way in which the criminal justice system operated after the initial shock of covid in 2020 has been to try to increase the throughput of cases—to put more into the system.
One could mention specific examples. Rape and other serious sexual offences has been a topic of intense concentration and effort, but it is not alone: there are a number of ways in which volumes have been growing. The difficulty is that the backlog surge in 2020 had not cleared before those factors—the Bar strike is just one of them—came into play.
Let me give you one more statistic. In London North—where we are, technically, sitting now, with all the Crown and magistrates courts that London North division serves—the backlog of live cases is over 10,000, in a single geographical area. We have 14 geographical areas. London North includes Snaresbrook Crown court and the Old Bailey, and deals with the most serious criminal cases. A backlog of that proportion—10,200—being looked after by our London North team represents an enormous challenge just on its own.
Again, I emphasise that I do not ask for the CPS to be looked at in isolation; we are part of a wider criminal justice system.
Given the opportunity, I would like to explain what that means for us in resourcing, both people and finance.
Q3 Chair: We will certainly come on to that.
I don’t know whether you have seen the analysis of the Institute for Government suggesting that a considerable proportion of the Crown court backlog is made up of complex cases—multi-handers or cases of greater complexity. In a sense, there is an underlying challenge even greater than the headline figure. Is that a fair assessment?
Max Hill: We need to bear in mind that many of the cases that I refer to, particularly those in the Crown court, will be what lawyers call multi-handed cases. There may be five, 10 and sometimes even more individual defendants within a single case statistic. That is the first point.
The second point is that the complexity of the evidence, of course, varies. There are some aspects that one can draw out. Complex economic crime—fraudulent activity—can involve enormous quantities of evidence and very large numbers of participants, including victims.
There are other aspects that one might not think of as being so complex. County lines drugs cases and modern slavery cases can involve very high numbers of participants.
Whichever type of crime we are considering, the technological aspect—what I have often referred to as the digital explosion in evidence—is an inescapable feature. It is a fact of life that in the 2020s police investigations have to take account of more potential sources of evidence and information than they would have before. There are to be found not in one species of crime but across the board aspects of complexity that mean that the volume of information goes up.
The Crown court, by definition, deals with criminality that tends to be more complex. These are the cases that go to trial by judge and jury. The overall volume of cases that the Crown Prosecution Service holds runs to hundreds of thousands.
I have said that there is a backlog of almost 75,000 in the Crown court, but our overarching case load—the number of cases we prosecute in a year—is much more like 300,000, some of which can generate a lot of material; others are, I hesitate to say, simpler in terms of the locations where one finds evidence. They are shorter, being non-jury trials, and are tried by justices of the peace or district judge alone.
I said that covid was a once-in-a-lifetime event, but we have had two surges in backlog that I don’t think anyone would have envisaged if we had looked at this from three or four years ago.
Q4 Chair: Talking of complexity, have you noticed any changes in the complexity of cases being dealt with in the youth court, for example?
Max Hill: The youth court is a very interesting and unique location. Where young people are to be tried in a youth court, when on any other basis they would be tried in the Crown court, our prosecutors and those whom we instruct to prosecute on our behalf are often dealing with grave crimes, simply because of the very young age of the defendant.
That means that the youth court is a special case. There are many examples that I could give, but one that I draw out is that cases involving vulnerable victims often find their way into the youth court, by age or other vulnerability. That means—and maybe we will come on to it—that the section 28 pre-recording of cross-examination material is a feature of the youth court. Often, people think of that only when cases reach the Crown court or, classically, in cases of adult rape. We see section 28 pre-recorded evidence in the youth court as well.
It is a special case. At the CPS we ensure very careful conduct of our youth court business. We ensure that only experienced prosecutors undertake those cases. Those cases—this is the way the system works—are susceptible to an appeal, which can lead to a full appeal by way of rehearing in the Crown court.
You are right to raise the youth court as one facet of the overall case load that bears particular attention. It is not something that one should ever forget or regard as being easy crime in the lower court.
Q5 Chair: That is very helpful. We shall come on to section 28 later.
You gave us pretty stark figures on the Crown court backlog. The Government’s target is to reduce the number of outstanding cases to 53,000 by March 2025. Is that achievable?
Max Hill: It is not for me to set goals or dates. A large number of things would need to align for that to take place. It is certainly achievable to return to a backlog below 50,000. That is where the system was—43,000—in February 2020, only two and a half years ago.
To achieve that now from a baseline of almost 75,000, a number of things would have to happen. They would include quite a significant increase in sitting days—the number of cases per week, month and year that can be dealt with in the Crown court. That would require an increase in judicial capacity, full time or part time. Where that is part time, it means experienced barristers, in the main, making themselves available to sit as part-time judges—recorders. That would mean that they would not be available to prosecute for us. Many of the most senior prosecuting advocates are Crown court recorders. That would drive a resourcing issue for the CPS, and we would need to keep up with sitting days if they were to rise.
I am all in favour of being aspirational, and on this and, I hope, every other topic that we discuss there is no complacency at the CPS—on the contrary, as I hope to demonstrate—but as and when anybody sets an aspiration to arrive at a certain goal by a certain date a number of things need to align, one of which would be sufficient resourcing.
Q6 Karl Turner: How is the delay and backlog in the Crown court affecting applications to extend custody time limits?
Max Hill: May I start my answer by saying that there are so many impacts of backlog? The most evident is the impact on victims and significant witnesses. That is not to diminish the impact on those waiting to stand trial—I recognise that and will come to it—but when cases are held in a queue for months or years it undoubtedly has a damaging impact on the victims of crime, who deserve to have the space and time to give their account and to seek justice. That is one of the prime objectives of a Crown Prosecution Service: fair and independent prosecutions.
I can give you the figures on custody time limits. Within the overall backlog, as at April 2020, when we took a baseline, there were 7,500 cases to which custody time limits applied—individuals in custody. If the trial was reached within the custody time limit, no problem. If not reached, an application, unique and individual to the case, must satisfy a judge on the legal requirements, including diligence and expedition on the part of the CPS. As of April 2020, there were 7,500 in that basket. By September 2020, that had risen to just above 9,300. It then started to drop—by dint, let me say, of the colossal effort by the advocates whom we instruct and certainly by our Crown prosecutors. At 10 October this year, it was 9,714.
Again, through the peculiar combination of factors over the spring and summer this year, we are at a historical high in custody time limit cases: 9,714.
The resolution of the Bar strike appeared to bring a plateau to custody time limits. We should see them fall, but I cannot over-emphasise the amount of effort that, case by case, needs to go into dealing with custody time limits. Backlog has consequences for CTL cases.
Q7 Maria Eagle: Will you talk a little about reducing the number of outstanding cases? You began to talk about that, but in practical terms you told us when you gave evidence in June 2021 that you were prioritising certain cases in response to the delays caused by the backlog. You referred to domestic abuse cases, especially where custody was involved. How is that going? Has your focus on it led to a significant, noticeable drop in those cases?
Max Hill: Prioritisation in the spring and summer of 2020 was a necessary measure. We were clear that where there was a high risk, threat or harm—the phrase I would use—it was necessary to prioritise those cases.
Let us take an extreme example. Does a long investigation into a financial fraud with no custody profile need to be prioritised, as opposed to a high-risk domestic abuse case where an individual’s physical safety, or worse, may be at risk unless the perpetrator is charged and, as may be, brought into custody pending trial? We applied some prioritisation there.
You cannot run the system on a long-term basis with that sort of prioritisation. Ultimately, it is our function to take the result of police investigations into all crime types and get them charged wherever they satisfy our code tests—evidential sufficiency and public interest—and bring them into the system.
Q8 Maria Eagle: Has that prioritisation gone now?
Max Hill: Yes. We had to release the immediate, emergency prioritisation; otherwise we would have built up a backlog of business that is waiting.
Domestic abuse is no less important. Those cases take their place in the list—in the queue—waiting for trials. All we at the CPS can do is to try to emphasise the elements of the case.
We have an extremely valued relationship with Courts Service staff in every court centre around the country. Senior Crown prosecutors hold those relationships on a daily basis. There are conversations between CPS area teams and listing officers in the Crown court in which, as I know from having sat in on these meetings, the prosecutor will be saying, "This is an individual whose case needs to be heard. We know it is difficult. Ultimately, the listing decision is for a judge and nobody else, but we have a vulnerable witness here and it is important that this reaches as near to the front of the queue as possible.”
Obviously, that conversation plays into adult rape cases, where we are very concerned that people should achieve justice through the outcome of the case as fast as possible.
I know that it is very difficult. Looked at one way, everything is a priority. From our perspective when charging cases that satisfy our legal tests, we cannot act on the basis of saying, “We will not charge this business now; it can wait a little.” That was a very short-term, emergency measure given where the system was in the summer of 2020.
Q9 Maria Eagle: What more are you able to do now to reduce the number of outstanding Crown court cases? We know that the Government’s target is 53,000 by 2025, with all the money that they put in the spending review. We are nowhere near that and time is getting on. What more, if anything, is the CPS doing to reduce the backlog or the number of outstanding cases? It is unfair to say it is all a backlog.
Max Hill: The first answer that I have to give to that is that once a case is charged, unless there is a problem and the evidence that we had at the point of charge somehow evaporates—witnesses withdraw and the evidence has to be revisited—unless that happens, the case will have to arrive at a trial court, unless there is a guilty plea. It would not be a solution for the CPS to say that cases are important enough to charge but not important enough to keep in the queue pending trial. We wouldn’t do that. These cases must be listed, so there have to be other solutions.
Increasing sitting days, which is not in our gift but is a matter for the Ministry of Justice, the Courts Service and the judiciary, is one obvious solution.
Those prioritisation conversations that I referred to is another, and I do think that there should continue to be daily conversations about how to construct an effective list in court, again emphasising that it is for judges to decide ultimately what cases will be heard in any given week. Our Crown prosecutors know what is ready for trial, know what the evidential issues might be and how many witnesses there are.
The best that we can do to improve backlog is to drive our own efficiency and timeliness of our decision making. The only way to do that is to increase the size of the Crown Prosecution Service. This requires resource. The size of the CPS had dropped by 2016 to a modern all-time low of 5,500 full-time equivalent staff, from a high point of considerably over 8,000 in 2010.
Similarly, funding had dropped. These are inflation-adjusted figures; that is the only way to try to bring parity to the figures. In the financial year 2009-10, inflation adjusted, the CPS’s budget was £887 million. By 2018-19, when I arrived in this role, it had dropped to £508 million. Headcount had dropped to 5,500.
We are grateful for two successive spending reviews: the annual review in 2020 and the three-year review in 2021. The last review is designed, by 2024-25, to restore CPS funding to £728 million. I am tempted to say “only £728 million”. We have not made a case for restoring our funding to 2009 levels.
With the benefit of those funds we are increasing our numbers. In this financial year, we have had 562 new starters at the CPS. That is approaching 10% of headcount. We have another 199 in the queue ready to be posted. We have just completed another national recruitment campaign. We are using every penny that we have to increase the size of the CPS—not back to where it was, but to a reasonable level, because the only way of coping with the surfeit of cases is to have more people to handle the backlog cases, releasing expertise into charging and case progression. The same person will have a conversation with police officers at the early stage of the investigation. The same person will then look at the case to determine whether it is ready for charge. The same person will manage that through the system, arriving at court. The only exception is that in the Crown court almost all the advocacy is conducted by barristers whom we instruct: that is why they are integral to everything we do.
We need to increase our size. If that doesn’t happen, what I have said about backlog and the little I can say about prognosis for the future will be all the worse if the CPS is not resourced as it needs to be.
I have to add in that regard, because we are responsible for them, that the fees we pay prosecution advocates need to match the fees that, as a result of last month’s resolution, will now be paid to defence advocates. We don’t ask that prosecutors are paid a penny more than those who defend, but we do say that they must be paid the same. The resolution of the defence graduated fee scheme means that there is now more money in defending than in prosecuting, and we need parity there.
A number of these factors have to align.
Q10 Maria Eagle: Recruitment is important, as you set out, but so is retention. A recent inspection of East Midlands CPS found significant staff turnover, particularly in senior grades, difficulty in filling posts and, therefore, existing teams being under the cosh, if I may put it that way.
You explained that you have managed to do some recruitment, which is all well and good, but what about retention?
Max Hill: As an employer, the CPS is very successful. Churn—the turnover of staff—is low, compared with many other public sector employers. It tends to be around 5% or 6% on an annual basis.
Q11 Maria Eagle: In East Midlands, it is 11.1%.
Max Hill: In some individual areas you will see higher turnover. That is driven by a number of factors. Often, a lot of very senior people at the CPS have spent their working lives as prosecutors. The CPS is coming on to 40 years old. Those young prosecutors are entitled to a happy retirement, and they are leaving. That creates an expertise gap that is hard to fill, but in an individual Crown court team or a complex caseworking—
Q12 Maria Eagle: It does not say a lot about workforce planning if a load of senior people all leave at the same time because they are retiring when it is eminently predictable that they will do so.
Max Hill: We are doing a number of things right now to ensure that our strategic workforce planning is as adaptable—as flexible—as it can be.
We have conversations with those who are entitled to retire to see whether they must do so or whether it need not happen just now. There are experienced prosecutors who will stay on the books at the CPS. They might step down to working three or four days a week. We are happy to retain them if we are funded to do so to keep that expertise in the business.
I have already talked about the national campaigns for recruitment—strategic workforce planning to ensure that we bring in the door far more than go out—but there is another point that is a feature of a national prosecution service: we are a digital service. To take another geographical area, in South West, by virtue of illness and some retirement, there was a shortage of available lawyers in the heart of the pandemic. I don’t think it was noticed at the time because we asked lawyers in other parts of the business—London or elsewhere—who were, of course, homeworking at the time to take over the casework of a team that was slightly thin on the ground in another part of the country. Through digital working you can do that without physically having to move staff across the country.
The other thing I would mention is that we now have a central prosecution team, which is a key component of our strategic planning. That team is ready to be deployed virtually, wherever needed. The trouble is that there are a lot of calls on the time of that central prosecution team. It is a surge capacity team.
If we found through an inspectorate report or otherwise that there was a particular lack of individuals, the central team would fill that gap. The problem comes if the central team is required to fill five or 10 gaps. I am not talking just about gaps caused by attrition through either illness or retirement. I am talking about capacity gaps caused by a surge in particular areas of casework. As legislation changes—we always have to follow legislation—areas of casework can pop up and can be hard to predict. All of a sudden, we will find that a regional team is looking at a much larger number of cases of a particular type. Where there is a finite number in the team, we try to use surge capacity to cover.
I think we are as adaptable as we can be. We are able to flex our resources right across England and Wales, but all that comes to a stop if we are not able to double down on the paid-for expansion of the CPS that was successfully argued in the spending round of 2021. That is why I am so committed to maintaining that.
Q13 Maria Eagle: I have a couple of quick things, one of which is job intensification. If your staff are having to carry heavier case loads because a bigger backlog needs tackling and your newly recruited staff are not up to the required level—it always takes time—are you putting too much pressure on existing staff who are effective but over time become less effective because they are exhausted?
We are about to have yet another Budget. It has been widely trailed that money is going to be tight—I am being kind—and that we might expect to see cuts in budgets and public expenditure on services such as yours that provide public services. What impact would budget reductions have on the CPS’s efforts to cut the backlogs?
Max Hill: You are absolutely right to raise the exhaustion point. I worry about the overload on existing staff in the CPS, whether they are comparatively new or have been there for decades. They are carrying out so many functions, and here it is not helpful to compare to 2010 or 2000.
The CPS annually wins awards for the way in which it looks after its staff. These people have chosen to stay in public service. I dare say, as lawyers, they could make more money elsewhere, in the private sector. They do not do that. They are dedicated to what they do. We do not seek to compete with private commercial rates in what we pay them, but we make up for that in the interest we take in them as individuals. That extends across training and mentoring functions, together with our whole human resources piece, which is designed at every management level to watch for signs of exhaustion. But I have to say I do see signs of exhaustion. When I go round the country, which I do all the time, it does worry me. I know a number of members of the Committee have been to our area offices, and when you see the sheer workload that, let us say, an individual senior Crown prosecutor has, it is colossal. It is only their expertise and sheer dedication that keeps them going.
So that does worry me—which leads on to the budget issue. It would be naive to be blind to the national economic position, of course. We are entirely alive to that. We know what impact the cost of living is having on our staff, just as much as on every citizen in the country. Of course I realise that special pleading for the Crown Prosecution Service can easily be put alongside special pleading for a host of other people; but, in answer to your question, if we are not able to maintain the budget that we were given in the spending round of 2021, and if we are therefore not able to maintain the expansion in our numbers within that budget envelope, I think it will be catastrophic for our work. It will be catastrophic in terms of the impact on the backlog. The result, in simple terms, is that I will not be able to say to CPS staff, “Just work even harder.” I have said that already. I asked a lot of them, and so did all levels of leadership in the CPS, in 2020, and they stood up to that. That is why they grappled as well as they did with the freeze on the system in the middle of 2020.
You cannot go on asking hard-working staff to just work harder. You need to be able to say to them, “There will be more of you next month than last month, etc.” Even that leaves—and you have touched on it—an expertise gap. We know that new staff, just like new judges, and certainly new police officers, need time to bed in. They need not just what is called onboarding and initial training; they need mentoring. That can only be provided by the experienced people, so that in itself is an extra ask of experienced staff. We ask them to do that because it will benefit the whole team and will mean that their workload will ease over time. If we cannot do any of that, I am afraid I see no way that the CPS can work faster or harder. The only other consequence is the obvious one: cases that currently take time x will take time x plus a bit, and then plus another bit. You cannot drive people to work harder than it is possible to work.
Maria Eagle: Thank you.
Q14 James Daly: I am sure you would not want to give the impression, Mr Hill, that the CPS are paid less than the defence. You are paid significantly more than anybody in private practice. The terms and conditions are significantly more. There are recruitment challenges, but you are hoovering up private practice lawyers throughout the country who are moving to the CPS because of the very good terms and conditions at this moment in time. Would you accept that as the reality of the situation?
Max Hill: Yes, absolutely. When I refer to the private sector, I am thinking of magic circle firms in the City of London, who are paid many times what a CPS prosecutor is paid.
Q15 Chair: Not criminal defence.
Max Hill: I am not talking about high street criminal defence practitioners. I do not speak for them, but I absolutely see the impact on the provision of essential legal services by dedicated, publicly funded defence practitioners of years of attrition. I accept that, indirectly, the CPS has paid into that phenomenon, because, yes, we have recruited some excellent people from high street firms of solicitors. When I go to a magistrates court and sit alongside a senior Crown prosecutor, and I find that that person previously worked for eight or 10 years as a defence solicitor, I know that they will be excellent. I know that they will understand the casework backwards. They will understand what good disclosure looks like. They will avoid what bad disclosure practice looks like.
So, yes, absolutely, we have benefited to the extent of those who are prepared to move to join the CPS. The package that we provide, beyond pounds, shillings and pence, is good in terms of the wellbeing and support offer that we have, but, in reference to my previous answer, I had in mind, for example, the survey of college students that takes place every year. Some 10,000 students, either studying law or intending to come to law, are asked where they would like to be employed, on qualification. The CPS comes top of that league every year. I have seen that happen for three successive years now. That is because the right people, who see the value in public service, see the real value in working for the CPS. None of that diminishes at all the necessity of a properly resourced defence profession, whether you are talking about barristers or solicitors.
Q16 Chair: The trouble is, isn’t it, that we are all fishing in the same pond, in some measure, among those who are prepared to do criminal advocacy?
Max Hill: Of course.
Q17 Karl Turner: You have spoken to the issue of retention and recruitment in regard to Crown prosecutors, but would you accept that there is a crisis in terms of defence solicitors? It is not your problem, of course, but I wonder what effect the crisis in defence solicitors, in terms of retention and recruitment, has on the Crown Prosecution Service, if any.
Max Hill: Thank you for not drawing me into the political situation, which solicitor representatives are more able to speak about than me. Let me give you a direct answer. Going back to questions about what more we can do to drive down on backlog and how we can improve efficiency in the system, what we need—whether you are talking about specific areas of crime such as rape, or general crime—is an informed, engaged conversation, at the earliest stage of the case. In the vast majority of summary offences, that means before the case reaches the magistrates court. In the minority, but serious, cases that go to the Crown court, it means a developed conversation about all the aspects of trial preparation before any advocate gets to their feet in front of a jury, because that is the end point of an awful lot of hard work.
The defence profession is a vital cog in the wheel. I am specifically including defence litigators, here—solicitors as well as barristers. Anything that can be done to support them to engage at ever-earlier stages in the system can only be a good thing. I take my hat off to any duty solicitor who is prepared to be interrupted at all hours of the night to go down to a police station. It is a matter of history, over decades: that is something that duty solicitors do. I want to see effective remuneration to help defence representatives to engage as the case is being put together. This is after the police station period but at the very early stages of court.
I will give you an example. We have placed a huge amount of pressure on prosecutors to show their thinking around disclosure. I will not dwell on this; we may come back to it. The disclosure management document is a feature, now, that has been created over the last four years—the time that I have been here. Every case, now, in the Crown court, has a disclosure management document. There is no magic to it. It is the prosecutor saying, “This is my thinking. This is how I regard relevance. This is what I have looked at; this is what I haven’t looked at.” It is so vital that the defence representative comes along and gives their view. Where there is something deficient in the prosecutor’s approach towards disclosure, the earlier that can be pointed out, the better.
It is not for me to argue remuneration schemes for the defence, but you have asked me a question about impact on the CPS. Any remuneration scheme that front-loads and rewards effort at early stages of casework can only be a good thing. The reverse of that is that everything will be left to the last minute, and you will have little progress, if any, on backlog, and it will corrode the efficiency of the system that we are all trying to improve.
Karl Turner: Okay, thank you very much indeed.
Chair: We have quite a lot of material to get through yet, so we will move on.
Q18 Laura Farris: I wanted to ask you a few questions about the roll-out of section 28. Perhaps it would be helpful if you just gave an overview of where you think it works well and some of the difficulties it has created in litigation.
Max Hill: In cases that need it, and for people who need it, section 28 is a vital tool. Although the roll-out of section 28 is not a matter for me—it is a matter for Ministers—when it was being mooted I always supported it. I have always said that there should be an available mechanism for pre-recording the entire input of a vulnerable witness to a criminal case, particularly given the backlog that we are facing. Specifically for victims of sexual offending who are having to wait years for their cases to conclude, it is a valuable tool to be able to say to them, “If the wait becomes too long, you won’t have to appear physically at the trial court at all. We can pre-record your input.” I give that top line support to it.
That does not mean, however, that section 28 should be used in every case. The first point about section 28 is that it is only applicable if section 27 has been applied. Section 27 is the pre-recording of the evidence-in-chief of that witness. You have to have that in recorded form. That is a matter for the police to conduct. They do it, usually extremely well. You have to have that in place.
Section 28, then, can be used as a very efficient method of capturing cross-examination, but where a trial is being prioritised, and where through what I was saying earlier we are able to impress on all elements of the system the urgency of getting the case to a jury, there are other elements of support that we can put in place for victims—for complainants—to encourage them to be physically present at the trial, in the courtroom with the jury, to give their account of what happened to them.
Those other aspects of support include screening, closing the public gallery, which is another thing that I have championed—it is called the section 25 provision—and ensuring as much as we can that cross-examination never strays from what is appropriate and justified according to the issues in the case, which should have been put down in black ink long before the trial in a defence case statement, to then be superintended by the trial judge. Where those things are in place, we should be encouraging victims to be there at the trial and to be present at the delivery of justice, which, ultimately, is for them. In other cases, though, for a variety of reasons—but where the wait is too long is a good one—we should be using section 28.
Q19 Laura Farris: Have you noticed any effect on attrition rates? One of the objectives, was it not, was that section 28 would reduce attrition? Have you noticed that?
Max Hill: I do not think anybody across the system yet has an evidence base from section 28 cases. Because the national roll-out and dedicated sexual violence courts are happening now only in certain parts of the country, it is too soon to say that we have a body of cases from which we can extrapolate attrition. There are estimates that section 28 will account for between 1,600 and 1,900 cases a year. They are estimates; nobody yet has a complete dataset.
It is absolutely a fact that for rape and sexual violence attrition is an enormous problem. We see from the report of a rape through to conviction in court wholly unacceptable rates of attrition. The vast majority of cases simply do not stay the course. That is a whole‑system issue which requires solutions. To take the sense of your question, I think section 28 can play a part there. It can provide a level of confidence about how a victim will play her part—it is usually “her”—in the trial process and a level of confidence about the time she may have to put her life on hold to wait, which is one of the pernicious elements of taking cases through the criminal justice system, but it is only one component, and I do emphasise that—
Q20 Laura Farris: It is quite an important component.
Max Hill: Yes. That is why I continue to back section 28, but there is a difference between saying that section 28 can be used in any qualifying case and saying that it must be used. Over time we will have to look at a number of things, one of which is the effect on conviction rate.
Q21 Laura Farris: Have you noticed any issues around preparation and disclosure? I guess you have to get the case more or less ready if you want to go for a section 28 procedure at a time when it would not necessarily otherwise be ready. Does that create problems?
The second part of my question is: do you then need to recall victims for cross-examination and re‑examination at trial because partial disclosure or further material has revealed something that they did not address in their evidence?
Max Hill: Our RASSO—rape and serious sexual offence—units work incredibly hard to ensure that, if a section 28 hearing is taking place, it is ready. As you say, you cannot simply have a go at section 28 and come back to it a couple of months later. That is something you want to avoid at all costs. If you sat down and met any RASSO unit prosecutor, they would say, “We have dealt with disclosure. We have provided the disclosure management document. We have been through the plea and trial preparation hearing. We have hit all the stages of preparation to trial.” Those things go without saying. That is a huge effort. I will not repeat it, but, to go back to what I said about resource and the impact of these colossal volumes on our people, it should not be underestimated, but they do that exceptionally well.
Recall hardly ever happens, and it should never happen. That is a matter of trial management. Questions put to a victim on a pre-recorded section 28 tape should be to the minimum as required by the stated defence in the case but sufficient to give the victim a full opportunity to meet that defence. It goes wrong where a defendant comes up with something else after the section 28 hearing and wants to introduce that at the trial. That concerns me greatly because it puts the victim at a disadvantage if something is said at what I am calling her trial where she is not present and she cannot answer it. That is why I think we need to watch conviction rates in this area. We cannot use section 28 as a convenience mechanism if conviction rates start to fall because control of the proceedings at the trial stage is too loose to maintain rigour.
I suppose there is one situation in which a section 28 hearing could happen twice. That goes back to what the Chair said about youth courts. My understanding is that, if you use a section 28 recording in a youth court case, which it is available for, on an appeal in the Crown court by way of rehearing, that section 28 tape could be played. I suppose there could be circumstances in which things had changed over time and a genuine new issue had come up that is to be pursued on appeal, which would then necessitate a second section 28 recording, but I would hope we drive that to an absolute minimum. The point about section 28 when you do have to use it is that you are giving finality to the person who is most affected by the crime.
Q22 Chair: One is always reluctant to recall witnesses even without section 28, but the only other circumstance I can think of is perhaps where one of the other prosecution witnesses either goes off proof or, under cross‑examination, comes out with issues which in the interests of justice have to be properly ventilated with the section 28 witness. I suppose that is a rare occurrence but one that you have to take into account.
Max Hill: You cannot say “never”, as it were, but the whole point about careful preparation and doing things up front is that, while no one can predict an outcome in terms of verdict—that is not for us to deliver—you should predict the passage of the case.
Q23 James Daly: Mr Hill, I do not know whether you have figures—if so, great; if not, perhaps you could write back to us—for the time in general between a section 28 cross-examination happening and the trial date. Are we talking years or months? What are we talking about?
Max Hill: It is infinitely variable. Recently, I came across a case in which the section 28 recording had been four weeks before the trial, but the reason it took place was that the female victim was 36 weeks’ pregnant by the time of the section 28 recording, so it is a mechanism that can be used.
Q24 James Daly: That is very helpful. The point I am trying to make is that we want to ensure that justice is as efficient as possible while representing the interests of all parties. In particular, for the most vulnerable victims I would hope that the gap between section 28 and the trial would in general be months rather than years. As a statement, are you able to comment on that?
Max Hill: That is what I would expect. To put that another way, no one has suggested to me that it is routinely the case that there will be a gap of years between section 28 and trial, but I know that it is routinely the case that there will be many months between a section 28 hearing and the trial.
Q25 James Daly: That is very helpful. We have talked about this before, Mr Hill, and I am sure you have the figures with you. Can you confirm the charge-out rate for rape at this moment in time in the country?
Max Hill: It depends upon what base you are looking. Of all the adult rape investigations brought to us by the police nationwide for charging, we are charging 69%.
Q26 James Daly: Can I take a step back from that? I know the point you are making. Before we go to that point, which I understand, do you have the figure for the total number of rape allegations that the police investigate? Do you know what the charge-out rate is for those?
Max Hill: In percentage terms, if you start at the very beginning, namely every complaint of adult rape to the police, and put that against charges at the other end, it is about 1.7%. I think it was being said two years ago that it was 1.3%, so there is some movement, but I emphasise that we do not receive from the police anything like 100% of rape complaints.
Q27 James Daly: I may be wrong in this respect, but I think that to the general public—this is a question of your expert opinion rather than a comment on the figures—1.7% seems very low. Do you have an explanation in terms of your interaction with police colleagues as to why so few of the total number of allegations are being referred to the Crown Prosecution Service?
Max Hill: Although that is a headline figure, that is cross-system and you cannot usefully apply it to anyone. I do not point the finger at the police, at the courts or the Courts Service; I do not say that it is the fault of the CPS. It is a cross-system issue. The fact that that percentage is so low is what drives so much of the work that we do. You are asking about work with the police. For the past 18 months Operation Soteria, which I know the Committee will have heard about, and the new operating model for rape investigation and prosecution are designed to drive those volumes.
Q28 James Daly: I appreciate that. All I am saying is that 98% of rape allegations do not make it past the arrest and consideration of charge. We have both been in this profession for a long time. Can you give, on record, any reason as to why 98% of rape allegations do not make it to charge? Is there any reason?
Max Hill: I do not think there is any single reason. If I was to give one, it would be guessing because by definition this is not material that the prosecution sees. These are not cases—
Q29 James Daly: You never ask the police why they do not refer these matters to the CPS.
Max Hill: Speaking for police colleagues—they are colleagues and partners here—I know that the overall volume from which we are taking the 1.7% will include cases in which no investigation is possible because a suspect cannot be identified; it will include cases in which an investigation has been commenced but it hits some insuperable obstacle not allowing the police to progress it any further; and it will include cases where complainants will come to the police but, for whatever reason, will be part of the general attrition figure where they are not prepared to support investigations.
Q30 James Daly: You as the DPP do not know the answer to that. That is very fair.
Max Hill: I do not think I can know the answer to that.
Q31 James Daly: As parliamentarians wanting to find out why there is such a low rate of charge-out, I would have thought the man leading the prosecution authority would be able to help us.
Max Hill: It is a whole-system issue. It is fair enough to ask me. You need to ask police leads and everybody else involved in the criminal justice system.
Q32 James Daly: Of the 1.7%, how many case numbers is the CPS dealing with? The charge has happened; the matter has gone to the CPS. Do we have a flavour of the numbers?
Max Hill: That brings us to the 69% of the material that we do receive which results in charge. The charge volume for rape in 2016 was nationally 3,790 charged cases; in 2020 it was 1,955; in 2021 it was 2,223. Those last two years are the first two years of Operation Soteria. We can see that the data is changing, in some cases quite rapidly. In 2016 and indeed in 2020, the quality of the police investigation files we were receiving allowed us to charge in 63% of cases. We have now pushed that to 69%.
Q33 James Daly: We have the figures in terms of charge-out. In terms of conviction rates for the 69% that are charged, what figure do we have there?
Max Hill: Our conviction rate in the year 2021-22 was 68%.
Q34 James Daly: We have some figures that suggest that currently it takes nearly six months for the CPS to decide whether to charge in a case of rape. Do you recognise those as accurate figures?
Max Hill: It is very variable. That may be an average, which means there are cases that are charged much more quickly than that, and there are some cases that take longer than that. That must follow. There is no average time.
Q35 James Daly: Do you think the CPS is dealing with rape cases in a timely manner?
Max Hill: I think that the dedicated rape and serious sexual offence units at the CPS are working with every resource they have to bring legal decisions to bear on rape investigations as fast as they can. They are doing more than they have ever been required to do in the past to try to grip these investigations from the earliest stages; to have conversations with investigators as an investigation opens; to set action plans; and to approve reasonable lines of inquiry. They are doing all of that alongside managing the backlog of these cases, as previously discussed, while they wait in the gap between being charged and reaching trial.
Q36 James Daly: You paint a picture of a perfect organisation that is working at 100% and doing everything correct.
Max Hill: No, I don’t. That is not what I am saying.
Q37 James Daly: About 10% of rape prosecutions are dropped by the CPS. What are the common reasons for this?
Max Hill: The most obvious reason is what we call a victim or witness issue. I think that in the past year 61 cases were dropped. Of those, 35 cases were either victim or witness issues. There can be a combination of factors and reasons why a victim or witness is no longer able to support a prosecution despite that case being charged, but I want to emphasise that in all the work of prosecuting sexual offences there is a finite number of RASSO prosecutors, as currently resourced, and only so much they can do with their time. The same logic applies to police investigators who require effective resourcing to work with us under Operation Soteria to improve these figures.
Let me give you our figures. In the year 2021-22 we were able to increase the total headcount of CPS personnel working on these crimes from 360 to 433. With the spending review from 2021, it is our intention to add another 194 personnel to RASSO units. We need to do that if timeliness is to improve.
Q38 James Daly: We both agree that the charge-out rate is a national scandal. We have had conversations about this in the past. You have talked about the fact that over many years the CPS has been negligent effectively in tackling this issue. The fact is that we come here today and there is virtually no increase at all in charge-out rates.
Max Hill: I do not accept that for a moment because you are confusing two things. If you look cross-system at the 1.7% for all adult rape complaints, as against charges, that is an issue for the whole system to tackle. I am the first person to say it. If you would like, I can give more detail about what Operation Soteria involves, but while it is not perfect—I have never said that it is perfect—under the joint national action plan with the police since January 2021, the CPS has seen a 53% increase in adult rape referrals, which are cases being brought to our legal teams, and has improved charging volumes by 58%. That is a considerable improvement. We are dedicated to continuing to improve that year on year and play our part in what is a wider system.
Q39 James Daly: My final question is about something you have talked about in the generality and we have talked about previously: release under investigation. It is another national scandal which is yet to be sorted out adequately.
We have talked about the time that cases take prior to charge or non-charge, as the case may be. As we sit here today, can you tell us the number of alleged accused who have been released under investigation on rape charges? This is the number of people who are currently subject to release under investigation for a rape allegation.
Max Hill: I can help you on the issue of release under investigation, but, by definition, since 2017, when this became a feature of the system, that is a police decision and not a Crown Prosecution Service decision.
Q40 James Daly: I am not asking you that question. I am asking about the numbers.
Max Hill: As for volume, I am afraid that you will have to go to the police. Dealing specifically with rape, the new operating model that we see incrementally month on month capturing these cases is making it far less likely that the police will release a rape suspect under investigation and far more likely that for that area of criminal investigation there will be close consultation with the CPS from the earliest stage. There will be a setting of action plans and work with a view to charge. Where cases are referred on the basis that the police think they are not able to take any further action, one of the features of Operation Soteria is scrutiny panels. I have seen these panels in action and cases where it was thought there was no prospect of being able to reach a charge but, after further conversation, a charge has been applied.
Q41 James Daly: In terms of release under investigation, what do you feel is the best model to help the CPS be more efficient and work closer with the police? Is it release under investigation or something else?
Max Hill: If you are talking here about aspiration, what should be happening is that those suspected of having committed criminal offences but not charged should be released on police bail; they should not be released under investigation. There is a very encouraging sign, although it is not for me to answer this, because on 28 October, last Friday, section 50 of the Police and Criminal Evidence Act was amended by the Police, Crime, Sentencing and Courts Act 2022, which has now applied new timescales to release under investigation. There is a bail period of three months, not 28 days, which the police are now entitled to use. That is encouraging the police nationwide to use PACE bail rather than release under investigation.
Another condition imposed by Parliament in effect last week is that where it is proposed that there should be pre-charge bail the police should take into account the views of the victim as to the conditions that should be attached to bail. I see that as a positive sign. My hope is that we will see release under investigation decline and police bail increase, and that is one of the many ways in which we will all grip the system together.
Q42 Chair: We would probably all be on the same page on the desire to see that movement. That is useful.
The final matter I want to ask about on this topic is the proposal for specialist RASSO courts. We now have three established at Snaresbrook, Leeds and Newcastle.
First, what is the principle of such an idea? Secondly, are you likely to see any particular impacts from these three as to how quickly the work can be done by the CPS in those cases? Is it likely to speed it up, or not?
Max Hill: It is early days because it is a small handful of months since the announcement was made that these three regional courts would start acting in this way. In the CPS areas affected, which I think are the North East, Yorkshire and Humberside and London North, we fully support it. Our teams are ready and willing and are working with the Courts Service and judiciary. Prioritisation, which was touched on earlier, is a good thing in this area. We see this as additional judicial resource that can be applied to this level of casework. My hope is that this will allow RASSO casework in particular to be advanced more speedily.
Having said that, there are some potential limitations depending on where these specialist courts are. If they are in what used to be called the Nightingale space—I think the one in Leeds is—there may not be a custody facility. Equally, if they are not in a dedicated Crown court building, there may not be a section 28 pre-recording playing facility. There will be some aspects of this area of casework that perhaps cannot be catered for. But, from our perspective, the ability of the head of a RASSO unit to go to the resident judge and listing officers in that court and say, “Here is the spread of cases that we have in the area. You are now able to triage those cases to reach trial more speedily because you have a dedicated court,” must be a good thing.
I am optimistic about it, although I have to recognise that this is a surge capacity in one area of casework which the judiciary may say, if they were here, means that that limits what they can do in dealing with backlog in other areas. There are only so many courts.
Q43 Chair: I understand that. It requires perhaps additional thought and planning on listing to maximise the use of the estate.
Max Hill: Yes, absolutely.
Q44 Paul Maynard: Earlier this year the ICO issued an opinion criticising the disclosure and collection of personal data of victims. What is the CPS able to do and what is it doing to ensure that any requests are proportionate, well-evidenced and meet the needs of victims?
Max Hill: Disclosure, as is well known, has been a huge feature of challenge, rightly so, for the CPS and other parts of the system. Since the start of 2018 and the national disclosure improvement plan there has been intensive focus on getting disclosure right early.
I continue to chair on a monthly basis, together with Assistant Commissioner Nick Ephgrave, now the NPCC lead for criminal justice, the joint operational improvement board where, together with the College of Policing, we scrutinise progress on getting disclosure right. That is not everything that we do, but that is a central feature of the joint operational board.
However, along the way since 2020, we have had the Attorney General’s guidelines on disclosure. That is a key piece of work, which was refreshed in particular by the then Solicitor General, a former member of this Committee, in April last year. It came into force in June. So the principles that are applied in effective disclosure have had focus from the Attorney General’s guidelines.
The fact is that nobody—this is where the ICO comes in—can short-circuit the legal requirements of data protection through the data protection legislation since the late 1990s right through to GDPR six or seven years ago. Personal characteristics have to be taken into account and redaction is a key feature of the disclosure exercise.
At the time of the refresh of the guidelines earlier this year many representations were made about the time at which redaction should take place; the efficiency of it; and, in the words of the Attorney General’s new guidelines, the proportionality of redaction. An annexe was provided to the Attorney General’s guidelines which is designed to bring about a new culture in the approach to redaction. That is still working its way through the system. We are working absolutely in partnership with the police to get this right.
There are data breaches. There are cases in which either we or the police, or both, will find in an individual case that someone’s personal details are disclosed to other participants when it should not happen. I do not think we can be complacent about that, but we have a tension between the legal requirements and the backlog in the system and the urge to try to do things as quickly as we possibly can. I have addressed backlog.
In answer to that question, I would say that it is a continuing focus right across the system that we get data protection and disclosure right. I do not know whether you want me to go into whether there should be further conversations now about the legislation in 1996, the test that is applied for disclosure and the extent of the work undertaken by police and prosecutors. We can always have an informed conversation about that, but data protection is here to stay and it is for all of us to apply the law.
Q45 Paul Maynard: Thanks for offering to write our briefing notes. The Committee might find that helpful to give us more questions to ask.
You rightly pointed out that the environment on disclosure is changing rapidly. More guidance is coming out; there is more partnership working. You have said who it is you are working with. Is there any area where the CPS is able to take a lead, or should be taking a lead, rather than merely working in partnership, because that can often be quite a nebulous concept of you spectating while others make changes?
Max Hill: I do not think that disclosure is a spectator sport for anybody. When I think of the joint operational improvement board meetings, which happen every month, senior operational leaders right across the CPS, the police, and with the training arm through the College of Policing, scrutinise compliance with the Attorney General’s guidelines, police force by police force area and CPS area by area, in order to drive the national picture.
The short answer is that it is down to all of us to apply the Attorney General’s guidelines, but in those guidelines there are some particular features. I will mention two: third-party material and pre-trial therapy. They are worth touching on because I think the CPS can help in those areas.
As to third-party material—in other words, material which it is thought may be held by someone who is not a direct participant in the case; it could be social services records, school records or medical records—there are many who fear that by making a complaint to the police the record of their past lives will automatically be opened up for scrutiny by the investigator, the police officer, seen by the prosecutor and then provided to the defence in court. We have provided as much guidance as we can on that, chiming in with the Attorney General’s guidelines on disclosure.
It has to be a reasonable line of inquiry before any third party should be asked to provide material they hold which might be relevant to the case. This should not be done on a speculative basis. People’s private records should not be opened up for scrutiny unless it is really necessary and it is reasonable given the issues in the case to look at that material. I emphasise that, even where that happens, it does not follow that that material will be provided to the defence. The only basis on which material goes to the defence is if that can be reasonably expected to undermine the prosecution case or strengthen the defence case.
What I have said about third-party material applies even more so to pre‑trial therapy, and this resonates in sexual offending in particular. There are people traumatised by what has happened to them who should never wait for the help they need. If that involves counselling or other forms of therapy, I hope everyone understands—the Attorney General made it very clear in the guideline refresh—that those people should seek that therapy; they should not lack confidence in the system.
Q46 Paul Maynard: Can notes of that become exempt from disclosure?
Max Hill: I know there are some who would argue for absolute exemption. On this, I have to defer to the Attorney General’s guidelines. They say that you cannot take an absolute position; you cannot say there are literally no circumstances in which therapy notes might be disclosable. You apply the test that the law put in place in 1996; namely, is there something there that undermines the prosecution case?
Therapy notes very rarely contain that sort of material. They contain evidence of the trauma that an individual has suffered and the assistance that that person needs through professional guidance. That is not evidence that undermines the case. If anything, it is evidence that proves the legitimacy of the traumatic experience that a victim has suffered. In those cases, there is no situation in which you would provide that to the defence.
The guidelines give a great deal of protection. They do not go so far as to say, “You can never look at therapy notes.” That is the state of the law as enshrined in the Act and now the guidelines. We try to give as much help on this as we can, but I emphasise that people should not hesitate to seek the help they need. They should do so in the confident knowledge that it is almost never going to be the case that a therapy session with psychiatrists and psychologists, or any other form of counsellor, is going to be provided for scrutiny in open court.
Q47 Paul Maynard: Given the nuance of your answer and the degree of protection that you suggest is in existence, is there is a case that victims should be able to access legal support when there are issues around disclosure, particularly around the most sensitive material we have just been discussing?
Max Hill: Ultimately, it is a matter for the victim to decide whether he or she needs some legal support as they go through what may appear to be a minefield of steps before a trial in which they are involved. That is my first answer. Ultimately, it is a matter for them to seek the help they need.
Again, let us come back to a rape case. If you think about it, what happens in an effective rape investigation is that there will be a proper level of communication between victim and investigator. The prosecutor will not be far behind because, under Operation Soteria, prosecutors have these early conversations with investigators and the police. We are working hand in hand to strengthen the case, to bring it to charge and, ultimately, to bring it to conviction.
The third side of that triangle is the independent sexual violence adviser— the ISVAs. They are an incredible resource and locally commissioned. This is where police and crime commissioners play a really important role in locally commissioned services.
In June, in Birmingham, at the Aston Villa ground, we brought together 250 investigators, prosecutors and ISVAs to discuss what we are doing under Operation Soteria. We had almost 40 nationwide police forces represented. We had every area of the CPS represented. We had dedicated ISVAs. We listened to them on better communication, explaining when an investigator requires some information and explaining to the victim why in ordinary language. If that is done well, it should be unnecessary for a victim to say that they need independent legal advice on top, which involves cost and delay.
I am not saying never, but the hope is that in the way that these investigations are operating now, particularly under the last 18 to 20 months, that point should not be reached.
I would finally add that, at the national rape conference we held, we had victims in the room. As a professional, you cannot do better than listen to somebody who has been directly impacted herself by a sexual predator in order to understand how to give assurance, what level of communication they require, how information should be given. Everybody in that room—I am speaking of all the police investigators and all the prosecutors—got that message. I hope that will give a level of confidence to other victims who are worried about going through this process.
Q48 Paul Maynard: You have been an enthusiast in the past for the use of technology in our courts. Covid gave you the opportunity to expand that use across many more areas. Have you yet bumped against the limit of technology’s applications in courts or do your ambitions stretch further?
Max Hill: The latter. There is clearly further to go. We are proud that the CPS is a digital service; we are proud that we have intra-operability between our areas and we can move cases within our own system. We are pleased there is more technology being included in courts, section 28, etc.
The common platform is the next big thing. We all know that has been in development for a long period of time. It is not owned or driven by the CPS, but we fully support the Courts Service in providing a level of operability in the court that exceeds the document case management system that at the moment is present in the Crown court. That DCS system is only in the Crown court. The great advance I know the Courts Service is working towards is to have a document management system applied across all the courts, Crown and magistrates. We do not have that at the moment; we have only stand-alone legacy systems.
For the CPS, we wish the Courts Service well in finally developing and bringing that about. On our side, we are retaining our case management system, which contains all our data. We have developed a number of interfaces, at best interfaces, which are ready. We have applied them in a dormant state on to our system, ready to speak to the common platform system when it is introduced in the Crown courts. That will be a great advance; that is ready to go.
Meanwhile, our own case management system, originally introduced in 2003, of course requires upgrading over time. It carries a huge quantity of data. Prosecutors use the case management system literally all day, every day. On the invitation to comment on investment, yes, please. Of course, the CPS needs comparatively modest sums, I should say, to ensure that our technology is up to scratch. We already know it will speak to the common platform system when applied in court, and the sooner the better.
Paul Maynard: Smooth as you are, you have segued beautifully into the common platform, which my colleague Kieran is going to ask you about rather than me.
Q49 Dr Mullan: Yes, I am. I just wanted to go back first to some questions around victim engagement.
Max Hill: Yes.
Q50 Dr Mullan: First of all, what are your expectations around the CPS’s engagement with victims in significant cases? I am not necessarily talking about a minor offence, but when they have been a victim of a significant offence, when it comes to decisions to charge, how do you engage with them, generally speaking?
Max Hill: We are not doing enough to communicate with victims of crime. We are not doing it frequently enough or at the right points in time for victims to have the confidence that they badly need in the system. That is absolutely obvious. That is why we have been working to transform our victim communication.
We first looked at this when we received not one but two CPS inspectorate reports in 2018 and 2019, which suggested that the letter-based system of communication was not working, was not getting messages across in the right way or, perhaps, even at the right time.
We have done a lot of work since then to transform the way in which we communicate with victims. We are trialling internally now—in fact, in eight CPS areas this month—a number of ways in which we will test what victims want. We have to do that alongside the legal and operational independence of the CPS. We have to protect the ability of prosecutors to make an objective view, applying the code test to whether a case should be charged and go to court or not. That has to remain of great importance.
I know we can make a bigger offer alongside the police. For a long time now, there have been witness care units funded by the police in each regional force. Long may that remain; we are not seeking to replace that. It would be a colossal reform and require colossal investment for us to do that. We know that we could and should put something alongside that.
We have a standard offer to victims. There are points in a case when letters will be sent. Classically, that will be when a decision is made either to charge or not charge a case. We know that that has to become an enhanced offer in certain areas. If we pushed the button and said that there should be weekly or monthly communication with a victim across all crime types, across all our case load, our people would not be able to do any other work at all. With everything I have said about backlog and the pressure that our people are under, it would just become unmanageable.
It is about providing a good, uniform service, but an enhanced service. The first area in which that is needed is obviously in the field of adult rape. That is our initial focus. We are working in the same timescale as Operation Soteria and to the new national operating model for rape, due to be in place right across the system by June 2023—in six to seven months’ time. We are working to provide our enhanced offer to victims of rape in that same time period.
I am restless to try to do more. When we think of adult rape, other case types are close to that where there are vulnerable, severely affected victims who would benefit from better communication. There are the top end domestic abuse cases that I was referring to previously, where people can be trapped in unhappy, abusive relationships, which, in some circumstances, can then translate into rape. This is about trialling what we can do on an enhanced basis and seeing how far we can take it. The simple answer is that we must do better.
To give one level of detail on that, which is something learned from the rape conference we held in June this year and other events I have attended, victims want to know in simple terms what is happening to their case. They want to know at the time of their choosing. They want to know in the manner of their choosing. For example, they probably do not want an email when they are at work. They definitely do not want one when they are studying or about to take an exam. They probably do not want a telephone call when they are trying to pick up the children from school or drop the children at school. We have to factor all that in to making the conversation helpful at a time that suits the victim, because that is the imperative. It is a big effort, but a victim transformation board is working on that now.
Q51 Dr Mullan: If you decide to move ahead with a prosecution, assuming the victim has made a complaint, generally speaking, even if the individual charging decision you have taken might not be exactly what they want, you are moving in the direction they would like. When you choose not to charge, I would imagine there is the highest risk of people feeling not listened to.
Max Hill: Yes.
Q52 Dr Mullan: I take your point about objectivity, but I cannot imagine that a discussion with a victim is going to be thought to impair the CPS’s ability to make a decision. Would it not be reasonable in significant cases, where you are deciding not to charge, that you should always have a discussion with a victim ahead of doing that?
Max Hill: It creates a real problem for independence and objectivity if there is a two-way conversation with a participant in the case before the charging decision.
Q53 Dr Mullan: To unpick that a bit, what is the legal requirement for you not to discuss with victims?
Max Hill: The Code for Crown Prosecutors says that any prosecutor, for any crime type, needs to decide whether there is sufficient evidence to charge and whether it is in the public interest to charge. A prosecutor will be looking for comprehensive information from the police before making that charging decision. That is why action plans are set, more information is called for, and there can be back and forth between investigating officer and the reviewing lawyer, the prosecutor. But there comes a point at which sufficient information is arrived at and the decision is made on that information. As much as people might like then a further conversation, that is not going to add to the information that a prosecutor has. That is why it is very difficult to say that an individual prosecutor should have a further or stand-alone conversation at that point in the process.
Q54 Dr Mullan: There is no legal reason why you cannot do that. It is not so much to do with it changing the decision. It is from a kindness perspective that you are dealing with people once removed and yet you are the decision maker. Is it not just good manners to speak to someone and say, “Look, we have made a big decision today. I want to talk you through it and answer any questions you might have”?
Max Hill: Of course it is good manners, but in the way that you have just said: “A decision has been made. Let me explain that decision to you. Let us meet if you would like to.”
Dr Mullan: Yes.
Max Hill: It is on making the decision; it is not prior to making the decision. I would add that, since 2013, the CPS has had a very good mechanism in place, which applies to all crime types, and that is the victims’ right to review. That has been in place for almost a decade. When a decision is made that any victim is unhappy about and they wish to challenge, they can trigger the victims’ right to review.
Q55 Dr Mullan: I want to come on and ask some questions about the right to review. Prior to that, would you accept in principle that it is preferable that people have a discussion when it comes to a significant decision relating to them being a victim of crime? I am not expecting that you do it in every single crime.
Max Hill: The correspondence model that has been applied for many years is based on that premise: on making a decision, reducing it to writing and trying to explain clearly why the decision has been reached in the way it has.
Running alongside is the Victims Bill. We know there is a formulation in it that suggests a duty to meet. We are working with colleagues in the Ministry of Justice to see exactly what that will look like, who that means. Funding and resourcing must also be added into the equation. I reiterate: take a busy RASSO prosecutor; he or she does not have the luxury of considering one case a day or only of considering completed police files ready for charge. There is intense effort put in across the system, using the Soteria model.
Q56 Dr Mullan: I want to come on to the examples of when the CPS offers no evidence and later there is a victim review that would suggest that that was the incorrect decision by the CPS. That creates a situation whereby the CPS’s own processes say, “You’ve made a mistake and that someone should have been prosecuted and they can’t be.” I understand it has been ruled that that is a lawful situation for us to be in. Do you think that is a satisfactory situation for us to be in regardless of what the law says?
Max Hill: Nobody wants any decision to be wrong, ever, made by any individual. We are operating in a human system in which experienced prosecutors do their best, given the material in front of them. That means we cannot guarantee in every single case that it will be the right decision. But that is what the victims’ right to review scheme is there for. It is used rarely. In the vast majority of decisions made and explained, there is no appeal or review under the VRR scheme.
Where the VRR scheme is triggered, as you infer, it has been considered at a very high level within the High Court. In a case called Hayes, Lord Justice Holroyd looked right across the victims’ right to review scheme and found that, even in cases where a review can make no difference to the outcome in the individual case, none the less for the sake of honesty and transparency and proper scrutiny it is valuable for us to provide an apology.
Q57 Dr Mullan: Thank you. My question is: is it a satisfactory situation where someone has not been through a trial, an incorrect decision has been made and that victim has no redress in terms of that person being put on trial? Do you think that is satisfactory?
Max Hill: There is redress in this sense: the victims’ right to review scheme can be used in more than one situation. There are cases in which it is used, a positive charging outcome is reached and the case goes to trial.
Q58 Dr Mullan: I accept that. It is quite a specific question I have asked you and I would appreciate a specific answer. In those scenarios where that is not allowed, do you think that is satisfactory? Let us say you have been assaulted. The CPS offers no evidence, so the person has not been found not guilty; they have not had a trial but you offer no evidence.
Max Hill: Of course—
Q59 Dr Mullan: The right to review has then found that was an incorrect decision; there was a reasonable prospect of conviction and you have no ability to forward that conviction. Is that a satisfactory situation for a victim?
Max Hill: Of course it is not satisfactory; it is a matter that is going to distress any victim. We encourage people to use the VRR scheme. Where we get it wrong, we will say so and we will apologise for that.
Q60 Dr Mullan: Would you support a change in the law that might allow for someone in that scenario to have an opportunity for that person to go to trial?
Max Hill: That would involve a wholesale change in the law. There are situations in cases, once charged, on a review, if a decision is made that it is not proceeding to trial, where that decision will be communicated to the participants, including the defendant. Unless there was a very significant change in the law, there are no circumstances in which the case can be reopened. There is nothing we can do to reopen the case.
Q61 Chair: It is doctrine of legitimate expectation, is it not?
Max Hill: Yes. Placing someone under a charge before a court pending trial is a very serious interference on the right of a defendant as well as a matter of great anxiety for any victim. A criminal justice system is always balancing those competing interests. We are just one part of that system. If a decision is made after charge to offer no evidence and to stop a case, that cannot be reversed because, as the Chair says, the defendant in that situation has a legitimate expectation that he or she is not going to face trial, so we cannot reverse that.
What we can do is promise to look at the decision under the VRR scheme. If we look and find that we are wrong, we will say so and we will apologise.
Q62 Dr Mullan: Can I infer that you would not support a change in the law or that you are neutrally identifying the drawbacks to that?
Max Hill: All I can say is that we do the very best that we can. It would be naive of me to sit here and say that every decision we make after this afternoon is going to be accurate. But let me say that when it comes to our legal decision making, code-compliant decision making, the CPS inspectorate routinely finds that 98% of legal decisions made by CPS prosecutors are accurate. When I look at recent inspection reports on our rape units, our RASSO units, often I find that, after extensive dip sampling and an independent review by the inspectorate, they hold 100% of the decisions as being accurate. There is some encouragement there.
Q63 Dr Mullan: I appreciate that. You are identifying what value there is in the right to review. I should not think many victims, if they have missed out on an opportunity for a trial, think that an apology for the fact that did not happen is much of a redress. I would not find it much of a redress, to be honest.
Max Hill: We do the best that we can.
Q64 Dr Mullan: On the letters that you mentioned, my colleague Ms Eagle mentioned the recent inspection in East Midlands. In relation to that, it found that some 50% of letters that should have been going to victims were not being sent at all. I am minded to be sympathetic and think back to when similar reviews have been done in the NHS. Sometimes a letter is sent to somebody and there is not necessarily a copy of it. Is that a fair reflection of the fact that people did not receive letters, or is some of it that there isn’t a copy in the file?
Max Hill: The inspection reports of 2018 and 2019 suggested that only 40% of letter writing by the CPS was deemed accurate and sufficient. That is a low base; that is not good enough.
Q65 Dr Mullan: To clarify, I am not talking about the quality, which is a separate issue.
Max Hill: Right.
Q66 Dr Mullan: I am saying that, in a lot of cases, there were no letters at all. In half of all cases in our file sample, where a VCL letter was required, the area did not send one.
Max Hill: That is clearly unacceptable. That is why there is a victim transformation programme that has been under way that will, root and branch, change the way we communicate with victims in positive and negative decision scenarios. We need to make that victim transformation. The correspondence model, which I am sure was introduced with very good intentions and which has resulted in high-quality letters in many thousands of cases, is clearly not sufficient going forward. That is why we are transforming it.
Q67 Dr Mullan: I will go back to those questions about the common platform. To what extent are your systems interacting with the common platform at present? Is it due to advance further into integration with your own systems?
Max Hill: At present, there is essentially no interaction with the common platform, because it has not gone live in court. It will provide a single place in which material can be shared in both magistrates courts and Crown courts by all partners in the criminal justice system. That is the goal and one that we wholly support.
At the moment, it is not there. At the moment, in the Crown court only, there is the digital case system. That is a storage facility, a document storage place, which does not exist in the magistrates court. We are still waiting for what I know is imminent, which is the single sharing platform right across the court estate.
We will be able to use that in much more interactive completion of forms for case management purposes. Everybody, in both magistrates and Crown courts, all participants, including the defence, judiciary, prosecution and Courts Service, will be able to interact, to use the platform, to make sure that the right information is available for any participant at any given moment. That is clearly a significant advance on the digital case system, which does not have that functionality at the moment.
Once that is brought in, we will be ready immediately to interface through app-based connections to our case management system. Our role in this is to ensure that we are ahead of the Courts Service. We have developed the app-based systems. We have applied them to our case management system in a dormant mode so that they can be switched on as soon as the Courts Service is satisfied with what they need right across the estate so that we are ready to go.
Q68 Dr Mullan: You are at that point now. As soon as it is ready to go, you are happy.
Max Hill: Absolutely; we are at that point. That is separate from what I call our future casework tools, our future digital investment and improvement, which does not go away because of the common platform. We still need to improve our own case management system. From day one, whenever that is, and it will be soon, using our case management system we will be able to talk to the court-based platform, if that helps.
Chair: It is helpful.
Dr Mullan: There is the question about the strike. I do not know who is doing that, Chair?
Q69 Chair: I will do it. Are you finding that there are any impacts of the PCS strike?
Max Hill: Again, it is not for me to get involved in that. There has been no industrial dispute involving the Crown Prosecution Service. We wait to see what happens next. Inevitably, sitting on top of the case load that we are, anything that impacts speed and efficiency in the system will only exacerbate the problems that we have in trying to address the backlog. That is the inescapable truth.
Q70 Chair: I understand; that is fair.
Finally, we talked about some of the technology. In a report the Magistrates Association had raised some concerns about the way video technology operated in the youth court. We talked about the youth court earlier and the seriousness of some of the offences. In effect, you are dealing with children charged with serious offences. They had some concerns in that they thought it was harder for children to understand proceedings via remote video technology, and the magistrates found it harder to engage with them. Those are their words, not mine. Is that something that the CPS had been aware of or had come to any particular conclusion on?
Max Hill: That is not something that has crossed my desk. I am only too happy to look at it to give any reaction. Back to what I said earlier, because of the seriousness, the gravity, of some of the crimes that are tried in the youth court, we do see a place for digital innovation, and that would include section 28 capability.
Q71 Chair: Understood, thank you. Then there are two very final topics. You have always been a supporter of a failure to prevent offence being introduced to strengthen our law on corporate criminal responsibility.
Max Hill: Yes.
Q72 Chair: Are you satisfied with the progress that is being made on that in the Law Commission’s published proposals? Do the proposals, from the point of view of a prosecutor, cover all that is necessary, or should they go further?
Max Hill: They are a step in the right direction, no question. We interacted pretty closely with the Law Commission. I was involved in a seminar with them last year. We do support this. This is not, of course, building a system from scratch.
Chair: No.
Max Hill: We have failure to prevent offending and offence structure within the Bribery Act 2010 and the Crime Finances Act 2017. Let us see a little more expansion of a statutory model that is already there.
I am turning up the Committee’s report into fraud that you published on 18 October. At paragraph 145 of that report, this Committee nailed it by saying that the failure to prevent offence would “focus private sector effort on designing fraud out of companies’ systems.” Ultimately, that is the goal here. This is not me, as a prosecutor, saying, “We are queuing up to prosecute lots of companies tomorrow.” Sure, if you expand the failure to prevent model, you could end up with some corporate prosecutions. They are possible under the Bribery Act already but very rare. We are saying that boardrooms should already be designing fraud out. If a statutory model makes that clear, that can only be a good thing.
The other reason why it is good and necessary is that the identification principle, which currently applies, makes it very difficult in practice for prosecutors to get to a corporate model if that was the origin of the fraud. That controlling and directing mind principle, which is the identification principle, has proved difficult in practice. The Barclays case in 2018 is a good example of that.
Chair: Indeed.
Max Hill: That is why, here and elsewhere, I have pressed for an expansion of failure to prevent to drive better corporate practice, to ensure that in those cases where it really is necessary corporate prosecutions can be mounted. That is a necessary and valuable part of what should be a national assault on the amount of money that has been lost to this country through fraud every year. It is at least £4 billion.
Chair: Indeed.
Max Hill: The figure I saw recently was £4.3 billion. Using the tools that we have at the CPS and the way that we prosecute, in the last five years we have secured £500 million in confiscation orders. We have been able to return £118 million directly to victims of fraud. We should be doing more of that. That will involve more intense focus on economic crime in all its forms. We have internally restructured our teams, I should add at no public expense to date, by creating the Serious Economic, Organised Crime and International Directorate. We are ready for an expansion in this area.
One of the things we should be doing, and I know the Committee seemed to be in favour in your report last month, is allowing the revisitation of compensation awards in the same way that we can revisit confiscation awards. Whenever the opportunity arises, we should look to get money back to victims of fraud. I hope we will continue in that direction. Any move in that direction is a good one. There is more that we can do.
Q73 Chair: That is very helpful. Director, you are four years into your term, are you not?
Max Hill: Today is my fourth anniversary.
Q74 Chair: The term will run for another year.
Max Hill: Yes. As is well known, I am appointed by the Attorney General. As with all my predecessors, it is a five-year term. I have just completed the fourth year. We have a new Attorney General. I am sure there will be conversations soon.
Q75 Chair: Do you have any particular priorities for the next year?
Max Hill: I want to make good on the national operating model for rape; to make good on a necessary and enhanced offer for victims; and to do everything we humanly can to deal with backlog. To make any of those three initiatives good, I want to protect the CPS funding—resourcing. Above everything, I want to ensure that there is proper recognition for the colossal effort and dedication of our prosecutors, which was recognised in the spending round last year and I hope that that will continue to be the case.
Q76 Chair: For those who have dealt with prosecutors, and from when I visited, I am sure all the Committee would want you to thank your staff for the work they do, which I know is extremely valuable and very much appreciated. I am sure you will take that back to your team.
Max Hill: Thank you very much.
Q77 Chair: I am sure we will see you before another year has passed.
Max Hill: I hope so.
Chair: We look forward to it. Thank you very much for your time and evidence, Director. The session is concluded.