Oral evidence: Pre-appointment hearing for the role of HM Chief Inspector of the Crown Prosecution Service, HC 955
Thursday 14 January 2021
Ordered by the House of Commons to be published on 14 January 2021.
Members present: Sir Robert Neill (Chair); Rob Butler; James Daly; Miss Sarah Dines; Maria Eagle; Kenny MacAskill; Dr Kieran Mullan; Andy Slaughter.
Questions 1 - 38
Witness
I: Andrew Cayley QC, Government’s preferred candidate to be Her Majesty’s Chief Inspector of the Crown Prosecution Service.
Witness: Andrew Cayley QC.
Chair: Welcome to everybody, particularly Mr Cayley, our witness today. It is good to see you. Shortly, we will move into the formal proceedings, but at the beginning, as Members will be aware, all members of the Committee have to make a declaration of their interests on each occasion. As usual, I will start. I am a non-practising barrister and a consultant to a law firm.
Miss Dines: I am a practising barrister, but I have not taken any cases since my election.
Rob Butler: Prior to my election I was the magistrate member of the Sentencing Council and a non-executive director of Her Majesty’s Prison and Probation Service.
Maria Eagle: I am a non-practising solicitor.
Kenny MacAskill: I have nothing to declare.
Q1 Chair: Kenny, you are a non-practising solicitor. Andy Slaughter, who I hope will be with us shortly, is a non-practising barrister. To save waiting, I will get that in for him.
Mr Cayley, welcome, and thank you for coming to give evidence to us. You are here as the Government’s preferred candidate for the post of chief inspector of the Crown Prosecution Service. We have read your very detailed CV and application; we have that in front of us.
I wonder if you could just help us with this, to start with. You have had a long career as a prosecutor. That is self-evident; you have been involved in the field. Why, having held a number of quite important public posts, did you then decide, “Well, let’s go for yet another one,” and move into the field of being an inspector rather than running organisations, as you have indicated to us?
Andrew Cayley: Good afternoon, Sir Robert, and members of the Committee. Thank you very much indeed for hearing me this afternoon. Directly in answer to your question, one of the areas that has always interested me, both in the work that I did overseas—you have seen from my curriculum vitae what I did—and at the Service Prosecuting Authority where I was the chief prosecutor, is the improvement of how organisations work.
I will not go through it because it is evident from my CV, but I spent a lot of time reforming the SPA in various areas. We can go through that if you want. I found that very rewarding. I saw the outcomes of things that often took several years to come to fruition, but at the end of it you see a better organisation. Obviously, I had some dealings with the CPS and the Director of Public Prosecutions because we had a jurisdiction that overlapped. I was interested in that organisation as well.
I now have nearly 25 years’ experience of prosecuting both internationally and domestically. As a prosecutor, one has a level of insight into these matters that perhaps people who have not prosecuted do not. I am not saying that I have a monopoly of wisdom but that having actually done it myself I know what the challenges are. Does that answer your question?
Q2 Chair: Yes. What do you think you can bring to the inspectorate’s role that is different? What particular skillsets would you say that you want to bring to being an inspector, perhaps on the basis of that experience?
Andrew Cayley: One of my great strengths is dealing with people. I think a lot of this job is about dealing with people and talking to staff on the frontline of the organisation. In the SPA and the international organisations where I worked, I always tried to consult people and to consult all of the stakeholders to improve things. I have done that at the SPA. I involved the judiciary—the military, the service judiciary—in reform. I involved the military courts services in reform. Obviously, I involved the prosecutors in my own organisation, the military police.
I found that that way of doing things, bringing people together, actually leads to the best results because then you bring everybody along with you. I think that is a particular strength that I have. It is vital in this work. A lot of the inspectorate’s reports are based on statistics, but they are also based on speaking with people and finding out their experiences of working in the system. That is predominantly what I would like to bring to the role. It is difficult in the current circumstances, but we have all this technology that can make it a little bit easier.
Q3 Chair: How would you draw the distinction between inspection and performance management, for example, having managed performance in your various roles in the past?
Andrew Cayley: As you know—I am probably stating the obvious—the inspectorate is not a regulating body. You cannot enforce your recommendations. All the inspectorate can do is recommend, but make recommendations that are credible enough, concrete enough and clear enough that they can be utilised by the individuals who are running the systems, by yourselves as the legislature, and obviously the Executive, the Attorney General, to improve performance management.
Q4 Miss Dines: Mr Cayley, can you tell us a little more about how you were recruited? Were you put forward by somebody who suggested you apply, or did you find the advertisement yourself? Tell us a little bit more about the process, please.
Andrew Cayley: The Director of Service Prosecutions, which is the position that I was in prior to applying for this position, is, like the Director of Public Prosecutions, a term-limited appointment. It was for a period of five years. In the end, actually, it was extended by two years because of the service justice review that the Government wanted me to see through. As you come to the end of a term and you know that you are not going to be able to continue in that job—frankly, at the end of seven years, they really needed somebody else and not me; it needed new blood—one starts looking around for other appointments.
Without going into detail, I applied for a number of appointments for which I thought I was qualified, including this public appointment. There was another public appointment I applied for, for which I was not even interviewed. I applied for the job because I was coming to the end of my term as Director of Service Prosecutions. I got this one interview. I was not interviewed for any of the other jobs. I was interviewed by an independent panel of five individuals. I knew one individual on that panel only professionally. That was the acting secretary of the Attorney General’s Office, who was the chairperson of the panel. I did not know anybody else on that panel. I can give you the names, but I do not have them to hand.
Chair: We have them.
Andrew Cayley: I did not know any of those individuals. I was interviewed, and I think a number of other people were interviewed as well; I do not know how many. I was notified that I was the Government’s preferred candidate after about two weeks.
Q5 Chair: Did you happen to know the Attorney at all, professionally?
Andrew Cayley: The current Attorney General, personally or professionally?
Q6 Chair: Either.
Andrew Cayley: Professionally, yes. I have met her twice because that is the individual I report to. I knew all of the Attorneys General.
Q7 Chair: As you do in this type of work.
Andrew Cayley: In fact, to be clear about it, there is not a legal requirement for the Director of Service Prosecutions to report to the Attorney, but a convention was established when the post was established to report to the Attorney. I think I have reported to five Attorneys General over seven years.
Q8 Maria Eagle: Good afternoon, Mr Cayley. Could you tell the Committee whether you currently, or potentially, have any business, financial or other non-pecuniary interests or commitments that might give rise to a perception of a conflict of interest if you are appointed to the post?
Andrew Cayley: Do I know individuals who may make it appear that I have a conflict of interest and who work within the CPS or the HMCPSI? Well, I know the Director of Public Prosecutions, but only professionally. In my prior job, I regularly met the Director of Public Prosecutions because, as I said earlier, I had an overlapping jurisdiction. I met most with Alison Saunders. I would meet her about three times a year.
With the current director, yes, I knew him as a member of the Bar, but he is not a friend of mine. If I saw him in the street, I would say hello to him, but I did not know him personally. I have met him once since he was appointed, simply because of Covid. I was not having regular meetings in 2020 with the DPP. I think I spoke to him twice on the telephone, once about an interview that I was giving on BBC Radio 4 that might have affected the CPS and, the second time, to ask him to be on the panel that would select my successor. That is the extent of my relationship with the current Director of Public Prosecutions. I cannot think of any other areas where my interests would be conflicted in any way by my personal relationships with people.
Q9 Maria Eagle: Can you tell us whether or not you have any other business interests, financial interests or commitments? Knowing somebody personally is different from—
Andrew Cayley: Business interests? I do not have any business interests. I am a member of Temple Garden Chambers, but I am not practising out of that set of Chambers. I am doing what most barristers do when they work for the Government. I do not have any means of giving them any work or anything like that from what I do because I do not work for the CPS and it is not a criminal set. No, I do not have any business interests that would conflict with my duties as an independent inspector.
Q10 Maria Eagle: Do you have other jobs or commitments of any kind that might be perceived to—
Andrew Cayley: I do not have any other jobs or commitments that conflict. The only thing I occasionally do is give talks on my international work, but I do not get paid for that. I do it for free.
Q11 Andy Slaughter: Can I continue that line of questioning? We have seen your CV and we have seen that you have a military background and a background in international law. Through that, are there any professional organisations, or is there any voluntary work or anything of that kind that you do, and intend to continue to do, which might throw up any conflict with this role?
Andrew Cayley: No. As I say, to develop what I just answered, the only work that I do is, for example, to give lectures on war crimes to the Services Combined Staff College. I do that for free. I do it to tell of my experiences to junior and more senior officers in the armed forces. I occasionally go to The Hague, again to give talks on international work to people who want to know my views because of my experience in the field. Again, I do not get paid for that work. I get paid my expenses. Certainly, there is nothing that would interfere with my role as an independent inspector of the domestic prosecution services of England and Wales.
Q12 Andy Slaughter: The papers we have seen, quite properly, mention under political activity that you have made a donation within the past five years to the Conservative and Unionist Party of £10,000. Could you tell us a bit more about when that was made, and whether you have made any other substantial donations or contributions in cash or kind? What is your level of activity in that party?
Andrew Cayley: I cannot remember the exact date I made that donation. I think it was the year before last, in 2019 or 2020. I have a very firm view about the democratic process. I lived in a country in south-east Asia where you would not even be interviewing me unless I was a signed-up member of the ruling party. Thank God, we do not live in a country like that.
I felt free to give that donation. The Conservative party is a party that I support. I am not actively involved in daily politics. I am certainly not active within the Conservative party. I am a card-carrying member of the Conservative party. I certainly took a number of decisions when I was working at the Service Prosecuting Authority that did not make the Government very happy at all, in terms of the Iraq cases—the investigation into members of the armed forces.
My view is that I should be free to give donations to political parties that I support. I certainly do not believe that it affects my independence in any way. The current leader of the Labour party went from being Director of Public Prosecutions to gaining one of the safest Labour London seats within about 15 months. I do not think anybody questioned that. As long as things are done fairly and as long as my independence is proven, which it is, I do not think there are any issues with that at all. I certainly do not have any intentions in this job of being politically active. After that, who knows.
Q13 Andy Slaughter: I do not think you will find anybody on the Committee who would disapprove of a donation to political parties. It is more a question of being clear about what your level of engagement has been. You say you are a member. Are you, or have you been, an officeholder of any kind, or have you aspired to political office?
Andrew Cayley: No; I have not been an officeholder of any kind.
Q14 Andy Slaughter: You have a very detailed background in certain areas of law and practice. Do you think that is broad enough for the role that you are taking on?
Andrew Cayley: Absolutely. You are suggesting by that question that because I have a very significant background in international law it does not naturally apply to domestic law. I disagree with you on that. One of the particular areas that I had to really develop was comparative criminal law—in other words, understanding criminal jurisdictions across the world, because we were applying common law and civil law from many different countries in the international court.
I came to appreciate best practice in many different countries. I think, certainly when I was in the international field, that brought a lot to what I had to offer. I have spent the last seven years as the chief prosecutor of the Service Prosecuting Authority, which effectively applies the criminal law of England and Wales, and other law as well. Basically, we work to the same standards as the Crown Prosecution Service, so I think I would bring the additional element of my international work and comparative criminal law best practice in countries around the world, together with nearly a decade of experience as a prosecutor in the domestic criminal system of this country. I think, yes, my experience is broad enough.
Q15 Miss Dines: You have been asked a little bit about your political interests. You have clarified that you are not an officeholder and you do not seek any political appointment. Are you quite clear about that, Mr Cayley?
Andrew Cayley: Yes, I am clear about that.
Q16 Rob Butler: Mr Cayley, my colleague will ask you some broader questions about priorities shortly, but I want to focus on two specific areas if I may. As part of my declaration of interests, I mentioned that I was a magistrate. I served for 12 years in magistrates courts. At my absolutely politest and most diplomatic, I can say that the standard of prosecutions in them is variable. How will you ensure that there is sufficient inspection focus on the role and the work of the CPS in the magistrates courts?
Andrew Cayley: I think what you are addressing is staff resources in the CPS. I am probably telling you things you already know, but most prosecutions in the magistrates court are done by the CPS. They are not done by members of the independent Bar any more.
The challenge that the CPS faced up until 2019 was providing adequate training to new lawyers, because it tends to be new lawyers who deal with that scale of work. You will know, Mr Butler, that the current director managed to get a more favourable settlement from the Treasury. More money has gone into training new lawyers going into the CPS, who will be going into the magistrates court, and more money has gone into training the commercial managers in the CPS.
It is a point taken. Certainly, one could include that in an inspection, not now but within a year or two, to see how effective the CPS training regime has been in improving standards. I have other recommendations. Interestingly—I do not want to go off the point, because I know other members of the Committee want to speak—I had exactly the same problem in the Service Prosecuting Authority. There were very mixed standards of advocacy.
For you, sitting as a Justice of the Peace, as a magistrate, it is extremely frustrating when cases are not presented very well, and you have to go through the papers and try to work out what on earth the case is about, when you have a huge volume. Of course, the responsibility rests with you making a decision on guilt or innocence and on sentencing. All right, you have a justices’ clerk to advise you, but nevertheless if you take the duty seriously, which you obviously did, it is very frustrating. I have been involved in that area. I know what steps can be taken to improve the quality of advocacy.
I will not go into the details here, but certainly I would be able to have a meaningful conversation and produce a meaningful report about that, because I have confronted the issue myself in the SPA, where we improved the quality of advocacy; the judges told me that when I left. It can be done. It is a bigger issue and a bigger challenge in the CPS because the CPS is a much bigger organisation. The current DPP is a very accomplished advocate himself. He gets it. He understands the issue and is probably doing all he can with his senior staff to improve things. Has that answered your question? It needs inspection and reporting on, basically.
Q17 Rob Butler: It has. I was just seeking some reassurance, frankly, that the magistrates courts would not be forgotten. Because they do not have the high profile, perhaps sometimes they slip to the back of the mind, but, after all, they account for more than 90% of criminal cases. I was keen to get that reassurance.
Another aspect I want to touch on is the treatment of victims of crime. I am concerned about that throughout the justice system. How will you ensure, if you are appointed, that victims are given due attention in your inspections?
Andrew Cayley: Again, we confronted exactly the same issue in the Service Prosecuting Authority: communication with victims of crime to let people know how matters are progressing. You know this yourself as a magistrate. For most people, particularly a victim, going through the justice system is a pretty frightening prospect. Honestly, I think that things have dramatically improved in the last 20 years. When I first started practising law, victims were simply witnesses to crimes. They were brought in to give evidence, and that was that.
Things are now a lot better than they were. You and I have read the reports. There is room for improvement. Clearly, in the area where this inspectorate is concerned, the CPS, written communication with victims is not what it could be. It is about 25% sufficient, so many letters are not written properly. I guess people’s names are misspelt or the letter does not actually explain to the individual what is going on.
The CPS is addressing that, from what I have read of their response to the report, but I agree with you. For cases to be successful before the courts, you need the co-operation of victims and witnesses. If you do not treat them properly, you have problems. It may seem like a small thing to a prosecutor. As we know, CPS prosecutors are very busy. Writing a letter to a victim may not always seem like the priority on the file, but it is extremely important to keep those people on board and to keep them informed.
I know there have been prior inspections. Certainly, from the results of the last inspection, I know there is room for another inspection. I regard that as extremely important, and I have personally seen what the consequences are when it goes wrong and victims are not treated properly. It leads to a lot of trouble for everybody. They deserve to be treated properly within the system, certainly in 2021 in a modern criminal justice system. People deserve to be treated with respect and sympathy if they come before the court. It is important.
Q18 Miss Dines: Could you tell us what your main priorities would be in the post, going forward?
Andrew Cayley: The immediate priority has to be the effects of Covid-19. I do not need to tell you what the effects have been in the criminal justice system; you know. One of the issues I will be looking at, interestingly, which may come as a bit of a surprise, is staff welfare within the CPS. People have now been working at home, very successfully, for nearly a year. God bless the CPS; because of their digital systems, that can be done very successfully, but I wonder what the consequences are for people’s mental health of being at home all the time alone and only ever seeing people on a screen. Staff wellbeing, and asking people how they are coping with working at home, would be one of my priorities.
In terms of processing casework, the CPS has done a pretty good job. If you look at the statistics on backlog, they have met a lot of the backlog. The problem is getting cases into court. I know that is not my responsibility as the inspector of the CPS, but, as I said at the beginning, I think we need to work with all of the stakeholders, looking at ways within the CPS, with the court services and the judiciary, to get cases moving. You know the steps that the Government have taken with expanding court hours and the Nightingale courts, kitting out courts all over the country so that people can be socially distanced. We need to work together. In whatever reports I am proposing to write within my first year, we need to look at how we are going to do this together, how we are going to get through this together and support people and the system.
I hope that answers your question. I can give you specifics on disclosure and the victims communications that we have already talked about. SFO leadership is another area that needs to be looked at. As you know, there was a report in 2019 on that. The current director has brought in measures to improve management of that organisation. Clearly, in 2022 there needs to be another review of the SFO.
In a sense, without proving to you that I have read all the reports—I do not want to do that—if you look at those reports, as I am sure you have, which envisage change over two or three years, one would need to look at the really fundamental issues again in two or three years, like disclosure, management and supervision of the complex case units, charging decisions and case progression. All of the fundamental issues that keep the system running efficiently need to be looked at regularly every three or four years. I would be looking at those again.
Q19 Chair: Mr McGinty has published his draft set of priorities, as you have probably seen.
Andrew Cayley: Yes, I have seen those.
Q20 Chair: Would you be broadly looking to change those very much?
Andrew Cayley: I don’t think so. No. I need to get there. Do you know what I mean? I haven’t been there. When Mr McGinty was interviewed for the job—I do not know whether you were on the Committee then—he had been working in the Attorney General’s Office, so he was very familiar with it. I am a bit reluctant to give you an absolutely concrete view in case I am in front of you again in six months’ time telling you that I have changed my view because I have done a lot of reading. For example, rape and serious sexual offending is an issue that needs to be constantly looked at. There is a lot of dissatisfaction with the way those cases are dealt with, both in the service jurisdiction and in the domestic criminal jurisdiction. We need to constantly find ways of improving things.
Again, I think things have improved in that arena in the last 30 years beyond recognition, but there are still things that need to be done to make it easier for people to come forward and make complaint for cases to get into the courts. That is another area that is going to be looked at once every two or three years. I know there is a lot of work being done across Government at the moment on rape and serious sexual offending. I think that is going to be at the top of the list of priorities of things to look at as well.
Q21 Dr Mullan: Thank you for speaking to us today, Mr Cayley. Obviously, your role is to provide a view on the performance of the CPS. As a Committee, we will be interested in scrutinising how effectively you do that. From your point of view, how do you think we might be able to measure your success in your role and scrutinise it?
Andrew Cayley: I guess I will regularly report here. How often do I report to the Committee? I do not know that.
Dr Mullan: Neither do I, as a new Member. I do not know if the Chair knows off the top of his head.
Chair: There is a periodic time. From time to time, chief inspectors are invited to come and give evidence to the Committee, to update us on the work of the inspectorate so that, in effect, we can scrutinise how the inspectorate is going.
Andrew Cayley: What I would say from my own experience of being the Director of Service Prosecutions is “damn lies and statistics”. Statistics are not always the best measure of success because they can be used by different groups and different individuals who have different agendas.
You want to see that what I am recommending is actually having results. I will make a report. You will be aware of that report as a member of the Committee. I will then go to the CPS and the SFO with my report and make recommendations. Obviously, as we have already discussed, I am not a regulator so I can only make recommendations. Assuming that I establish reasonably good relations with the Director of the Serious Fraud Office and the Director of Public Prosecutions, I can then monitor and wait for a report from the CPS on the implementation, or not, of the recommendations that I make. Then, with the time lag after that, I can see what the outcome is of the implementation of those recommendations and report back to you with all the questions that you will have.
That is the way I would see it working. It reinforces what I have already said to you about human relations and getting along with people, consulting people, speaking to people and persuading people. That is why that is a very important part of this job. I have no enforcement powers at all. I have a statutory obligation to report and make recommendations, but that is based on personal relations with people and trust. Hopefully, I will be bringing people along with the recommendations, rather than dropping a series of recommendations on people that cannot be fulfilled. Close working relationships. Does that answer your question?
Q22 Dr Mullan: Yes. I understand, particularly if you are new to the role, that it is a difficult thing to answer. That is a very good articulation of the inspectorate as a driver for improvement, focusing on recommendations.
What are your thoughts on the role of the inspector in uncovering or identifying—perhaps a better word—shortcomings? We want to get those identified for the benefit of delivering change, but how do you ensure that you deliver on identifying the areas that need change?
Andrew Cayley: I think it is trust. You have to develop trust. My experience of doing this kind of work for a long time is that people do not like surprises, particularly people who run organisations. One of the beauties of this country is that we tend to operate these things in such a way that we are very polite to everybody. I have worked with Americans. They tend to drop the hammer on everybody over these kinds of issues.
My view would be that, if I develop a relationship of trust with the Director of the Serious Fraud Office and the Director of Public Prosecutions, they will permit me to inspect in such a way that these kinds of things are revealed, as long as they are dealt with sensitively and carefully. I do not mean by that sweeping them under the carpet. Mistakes are made. Look at the CPS, not under the current director but under the prior director. She inherited a lot of problems, which then became the subject of a lot of media discussion.
My own view is that as long as you have good relations with the management in the organisations, they will permit you to come inside and look at the problems. Then you can explain exactly how you propose to deal with them, and tell the two directors who is going to be informed and how it is going to be managed in the media.
It can be done. I hope that answers your question clearly enough. Without concrete examples, it is difficult. I can give you the consequences of not dealing with those kinds of things openly. If you look at disclosure mistakes that have been made over the years, and the massive issues that they created—the miscarriages of justice—you see why it is better to be open about these things once they are discovered. If they are kept under wraps, they always pop out in the end, years later. It is better that everybody knows what is going to happen, and that it needs to be looked at carefully. I am sorry that I cannot be more specific.
Q23 Dr Mullan: That is fine. That is talking about your success in terms of delivering on your external-facing objectives. You will also run an organisation, whatever type of organisation that might be. What would be your approach to ensuring that your teams, your staff and your operations deliver effectively?
Andrew Cayley: Again, I know it sounds like a bit of a cliché, but I have found that the most important thing is human contact and spending time with people. It is difficult at the moment. I am facing all of you on video and it is quite impersonal and sterile, but, hopefully, by the time I am in post, a lot of us will be vaccinated and maybe some people will be working back in the office. I think the most important aspect of management, particularly in an organisation like that, is contact with people and communicating to people what you are doing and why you are doing it, asking people for their ideas on how to improve things.
That is my sense about all organisations that I have worked in. It is to make people feel part of the organisation and to make them feel that their opinions and views about doing things are valid. Bear in mind that most of the people within the organisation have a lot more experience than I have of inspecting organisations. I have done internal reviews, in the sense of marking my own homework, if you will. I do not want to put it quite like that, but you understand what I mean. When you are reviewing your own organisation, it is not like somebody coming in from outside and reviewing it. It is different and harder.
I have a good sense, after this time of managing lots of different organisations, of making people feel valued and worth while. Certainly, from everything I hear, the organisation has been transformed under Kevin McGinty. I think morale has improved dramatically. It is a good organisation. I have to begin with a degree of humility; most of the people there know a lot more about it than I do, and I have a steep learning curve that I am going to have to meet.
Q24 Kenny MacAskill: Obviously, your own professional independence and that of the institution is fundamental. What are your thoughts about how you go about securing that and, indeed, arguably enhancing it?
Andrew Cayley: In all honesty, it is quite hard to put my finger on something and say, “This is how I make myself independent.” All I can do is give you a couple of examples from my career of where I have had to exercise fairly strong characteristics of independence.
When I was working for a certain country in south-east Asia—you can see it on my CV; I do not particularly want to name the country in a public broadcast—I was dealing with cases where the Government had a lot of interest in the cases that were being prosecuted. It is a one-party state, so there is no opposition. There was a kind of opposition then, but there is absolutely no opposition now. The Government had a lot of influence within the court and certainly could manipulate people to get what they wanted.
I made a very public stand against that. I did not criticise anybody in that Government, but I certainly made it absolutely clear that we had to follow the law and the rules of procedure in the court, and that that was more important than anything. I have come under the kinds of pressure overseas that people would never come under in this country. Certainly, in my seven years of being Director of Service Prosecutions, I never came under any pressure at all from the Government to go one way or another. In fact, the contrary is true. It was said consistently throughout the Iraq cases, “You are there to make independent decisions about this. However much political pressure the Government is under over this, you are independent.”
Indeed, internally as the Director of Service Prosecutions, I remember one example that I will talk about in general terms because I do not particularly want to identify the person. A very senior officer in one of the services interfered in a prosecution by making public statements critical of a decision to prosecute one of his officers. He was a very senior officer. The steps I took there were to write to the head of the service, making it very clear indeed that, if I heard another word out of that individual about the prosecution and about the independent decision to prosecute the officer, I would be reporting the matter to the service police to investigate.
I have been in positions where my independence has been challenged. I do not think that in this role I will have the same challenges that I had overseas. There are ways and means of making sure that you maintain your independence in a role such as this. You must be careful about your political connections outside the regular processes of the Attorney General and this Committee. You have to be very careful who you talk to. You have to be very careful about your interactions with the media. That can be very useful and constructive, but it has to be done very carefully.
I do not have any fears about independence. I hope I have demonstrated that with my prior experience. It is something that, if you are brought up in the legal system of England and Wales—in fact, any of the legal systems of the United Kingdom—it is basically in your bones. We are very lucky in this country in how independent we can be as prosecutors and independent inspectors. As you know, and I hardly need to tell you—you are a very experienced Member of Parliament—in many states it is not like it is here. That is why we have the rule of law.
These things are important to me personally. I have lots of experience of maintaining my independence in what were dangerous situations.
Q25 Rob Butler: Mr Cayley, in your last answer you referred briefly to the media. I want to flesh that out a little bit. What is your assessment of the public profile and reputation of the inspectorate at present? Are there any ways in which you would wish to change it?
Andrew Cayley: I think Kevin McGinty has quite a conservative—with a small “c”—view of engagement in the media. I respect that. I think he feels, like many people in the legal profession, that unless you really have to go in front of the cameras, don’t do it.
I have a slightly more head above the trenches view than that. When I was the Director of Service Prosecutions, I went public on two occasions about things. One was to make an apology to a rape victim who had committed suicide. I felt I had an obligation. It was a decision made before my time as director, but unfortunately I inherited the mistake that had been made. I felt that the best thing I could do was to make a public apology to the family about what had happened, so I did that.
The other instance was when I spoke to Rozenberg on “Law in Action” last year about rape and sexual offending in the services, and about Iraq-UK, because there was so much speculation in the media about all of that. I wanted to settle it, so I gave an interview for 20 minutes.
What I would say is that I am not afraid of going in front of the media, but I am very careful about it. I would like to assess whether or not the public profile of the organisation should be raised, after I have been there for a few months. I think that would be the sensible approach.
There has been a lot of criticism by various interested groups about the report on decisions in rape and serious sexual offending cases, where, effectively, the report endorsed the practices of the CPS. All they can do from the files they are given is decide whether decisions have been made properly. There are a number of groups that are not satisfied with that at all, because they see the disparity between the number of cases reported to the police and the number of cases that actually end up in the courts. It is a very sensitive area. We know that.
That is the only negative media reporting I have seen about the organisation, but the best answer I can give you is that I will look at the landscape when I get there and then decide what I am going to do, basically.
Q26 Rob Butler: Do you think, from the answer you have just given, that there is an element of public accountability in your role? If the inspectorate, under your leadership, reached a view or a decision on certain practices, do you think it would be beholden on you to give the appropriate interviews to the appropriate organisation, whether it is mainstream media or specialists, to explain and justify the stance you had taken?
Andrew Cayley: I think there is. I would be interested, when we come to it, in the Committee’s view on that. There are lots of stakeholders and I have found that when you give interviews about these things you are always likely to upset somebody by what you say. The reality is that the function of the inspector and the inspectorate relies on good working relationships with those organisations.
If I was to go public, I need to think about it. I understand the point you are making, that this is an inspectorate and a person appointed to be accountable not just to you but to the public, so that they know that the public prosecution service that they pay for is working properly, but I think with any response that one gives in public, you are better off letting people know in advance that you are going to do that and what you are going to say. Otherwise, in my experience, these things can cause enormous upset if you make some bombshell of an announcement publicly without giving the organisation an opportunity to make some form of comment on it.
It would have to be relatively serious. If you look at the minutiae of the reports, they deal with so much in a particular area. There is a level of complexity. I am not in any way wishing to make it sound like it is nuclear physics, but some of this stuff is quite complex. On disclosure, you know why that is very important, but not everybody in the public knows why it is so fundamentally important to the administration of justice. But it is. I think you would need to define the subject area on which you were going to do it. It would have to be important enough, and there would have to be consultation with stakeholders before you did it.
I understand the point of the question. Yes, there is a public accountability aspect to this job. I am interested in your view on that.
Rob Butler: I am not sure I am in a position to give that in this particular hearing.
Andrew Cayley: I am sorry; I should not have asked.
Q27 Chair: It may be a trite line, but we are the ones asking the questions. If the appointment proceeds, we look forward to engaging with you on that.
Andrew Cayley: I am interested in your views on that, but I will not ask now. My apologies.
Rob Butler: I am, of course, very much in favour of transparency, not least because I used to be a journalist. I will leave it there for the moment. Thank you very much.
Q28 Maria Eagle: You have said a little bit about priorities, Mr Cayley, and what kinds of things you would be focusing on to start with, were you to take up this appointment. Have you had a chance to come to a view on what kinds of risks you think the inspectorate will face during your term of office and how you intend to manage them?
Andrew Cayley: If you don’t mind me repeating what I have already said—if I am not answering your question, please interrupt me—I think staff welfare is a big risk, particularly in the CPS. People are working at home. It has been fairly productive, but how we are looking after all of our staff needs to be looked at very carefully. There is a risk that the inspectorate runs in how it looks at that.
The challenge of Covid generally is going to be a huge risk for the inspectorate. How are we going to carry out inspections in the way that we have done in the past? I know the inspectorate has been adapting, but there is the very fact that it is difficult to have face-to-face meetings with people. Are our reports going to be adequate? Are they going to be satisfactory? Are they going to be as comprehensive as they were before, when a lot of our work is being done online and not face to face? As you know, all the inspections prior to Covid were done face to face. We went to the office of the CPS dealing with the particular area we were interested in. There will be a long hangover from it, whichever way we look at it.
Even if everybody is vaccinated by the end of this year, into the following year, there is a long period of risk to the inspectorate and how we properly deal with all of the issues in the current climate. That is the principal area that I am worried about.
Q29 Maria Eagle: Could I raise one other area? Mr Slaughter is going to ask you something about the Serious Fraud Office. Increasing numbers of constituents come to me having been defrauded in what would be seen perhaps as rather petty frauds, but they are individual frauds that never, ever seem to get properly investigated, prosecuted or dealt with by the criminal justice system generally. Obviously, that includes the CPS. In my experience, it is becoming a real issue that undermines faith in the rule of law and in the criminal justice system. Do you have any views about that?
Andrew Cayley: It is interesting that you raise that because it is a real problem. Most of the fraud cases that you see and that come to the courts are significant amounts of money. I know exactly the kinds of people that you are talking about who come into your constituency office. It might be an elderly couple who have been robbed of all their savings by some fraudster.
It is not batting away the problem, but I think that issue rests with Government and the legislature. You have to look at changing the law to make it easier to deal with those kinds of cases, and to make sure that they go through the system. What often happens, at least from my experience—I am not an expert—is that the police do not investigate it. They leave it to the civil courts, for people to be sued in civil proceedings, because fraud cases are difficult and unless it is a huge case nobody really wants to deal with it. Those people never get any criminal justice, and if they go through the civil courts they generally do not get their money back because the people they are suing are crooks.
There needs to be a serious look at the whole way in which these kinds of smaller, fraudulent claims are dealt, with maybe a more summary form of justice for those kinds of small claims. I completely share your view, and I have heard it a lot. We did not deal with a lot of fraud in the Service Prosecuting Authority. It happens in the services, but it is not as prevalent as in the civilian system. You are right that it is a real problem, and smaller cases do not get dealt with, because either the police do not investigate them or the CPS do not prosecute them.
Q30 Andy Slaughter: Sticking with the subject of fraud, part of the inspectorate’s job is to inspect the Serious Fraud Office. Some of the tools may be the same, but it is a discrete area of operation. It is an area where there has been a lot of concern, particularly about complex and major fraud and the way that has been dealt with over a number of years.
I appreciate that you said that you want to see for yourself and do not want to prejudge the situation, but based on your experience as a prosecutor and on what you have found out about the job, how are you going to approach inspecting the SFO?
Andrew Cayley: There are two points. One goes to a point I made a while back. The management changes that the new director brought in have been going on since 2019. We need to see how those play out over three years until, I think, 2022.
The other issue at the SFO, at least from what I have read—I have not been there or spoken to anybody there—is case handling. These cases are massive. Having worked in the international field, although in a different area of law, on very big cases myself, I know that, because they are so big, these cases take on a life of their own. Oftentimes, unless they are very strongly managed, people lose sight of where they are actually going.
I think my priority at the SFO, working with the new director, will be the way cases are managed, and that there are regular progress reports and goals set, so that people know where you are going and you do not get to the situation where a case is investigated for five years and at the end of five years suddenly the decision is made, “Well, actually it’s not going anywhere.” Decisions can be made in cases long before periods like that have expired. It is all linked to management. From everything I have read about the SFO, it is about proper management, case control and somebody having responsibility for the case, making sure that it is progressing and that goals are being met to either close it or bring it to a prosecution.
Q31 Andy Slaughter: I am sure that is right, but aren’t there further issues in relation to simply understanding the complexity of what is happening from a legal as well as a fact management perspective, and having people of sufficient quality to be able to effectively beat the fraudsters? How will you go about that? Do you think it is an area of weakness in your own experience that you have not done work in that area?
Andrew Cayley: From what I have read, there have been staffing issues at the SFO with people being sufficiently qualified and with the right experience—for example, people qualified in accountancy—in order to understand these things. I obviously have to look at that and go in and decide. You are quite right; certainly, in the report that I read they did not have, several years ago, staff with relevant or sufficient qualifications to look at very complex fraud cases. I will be looking at staffing as well, and making sure that they get the right staff.
It is difficult in this field. A lot of people who work for the SFO go off into the private sector and work for banks and big law firms, where they can probably earn 10 times what they make working in the public sector. That is a real problem. It is not a problem that you have with the CPS, but you will know yourself that it is an issue. Getting people to come out of the private sector into public service is something that you have to try to attract people to do by talking to big law firms. It happens in the US. Partners in big law firms take time out and work in the federal justice system because they can bring in all of their expertise. It is more difficult to do that in our system.
Q32 Andy Slaughter: Given what you say about perhaps the lack of your own experience in this area, is it something where you expect to bone up and acquire expertise, or will you be looking to have people in your team who have a particular expertise to deal with it?
Andrew Cayley: I think I will be doing both, to be honest.
Q33 Andy Slaughter: Going back to your response to Maria Eagle a few moments ago, you talked about fraud generally and changes to the law. I was not quite sure what you meant by that. Is it not rather more an issue of resources? Maria is absolutely right; all MPs experience the frustration that fraud cases, small, medium and large, are simply not dealt with in that way. You could equally well apply the same thing perhaps to the SFO—that cases are not being prosecuted, or prosecuted quickly enough, or that there is some form of plea bargaining going on because the resources simply are not there.
Andrew Cayley: Yes, but I think the problem is the level of resources. You are talking about two different issues. You are talking about minor fraud, which may be very important to one of your constituents. The example I gave was of the elderly couple defrauded out of their life savings. That is very different from a bank fraud involving £200 million.
The reason the elderly couple’s case is not dealt with is that, oftentimes, there are just so many cases like that. They end up in the civil justice system as opposed to the criminal justice system. How much you would need in resources to deal with that I do not know, but I think you could have a faster form of justice for less complex fraud than we have at the moment. I cannot put my finger on it now and explain to you exactly how it might work, but I think it should be looked at.
In terms of the SFO, which is dealing with massive and complex fraud, probably, yes, one of the reasons that there is a lot of plea bargaining is the risk of losing the prosecution because those cases are so complicated. I do not think that just throwing more resources at it is going to sort that out. There has to be a change in the way those cases are looked at. I do not think just putting more money or more staff into it is going to solve the problem. I accept your point that you need properly qualified people working in the office, with the right experience to address complex fraud. You absolutely do. At the end of the day, I think a lot of the risk that people decide not to take in those cases is because they are fearful that they might lose them if they come to trial. Thus, a plea bargain is done, and people accept a lesser conviction in order to plead guilty. You have to look at the way we present those cases in the courts, and come up with a better way of doing it.
Chair: We now come to James Daly, who is a non-practising solicitor, by way of declaration of interest.
James Daly: I am a practising solicitor.
Chair: Still practising.
Q34 James Daly: Mr Cayley, I am very sorry that I was delayed coming into the meeting. I am going to get back to a hobby-horse of mine. I was a criminal defence solicitor for many years. We have release under investigation, which is a process under Home Office jurisdiction and is causing incredible delays in justice in the system we have. Many times, the charging standard is not applied in the most appropriate manner by the Crown Prosecution Service. Within that scope, many cases are disappearing that should be coming before the court and that are in the public interest to come before the court.
For you to be able to take an approach to that, you will have to work with police and crime commissioners, chief constables and the court system itself. In my view, we need a CPS inspectorate that is right on top of the issue, making sure that cases that should go before the court do not stay in a pile.
For the most basic assault now, you are lucky to get charged within 12 months in many areas. You talked about minor fraud, but 12 months is the minimum. Once these cases have gone through the first interview, many of them, thousands upon thousands, are just left. I speak completely personally here. Some of the people I have talked about—police and crime commissioners and chief constables—have not, in my view, given us sufficient explanation as to why the delays continue.
What is your view on that? How do you feel you could work with the various parties to ensure not only that we have a quicker throughput of cases but that justice is served by people being charged who should be charged with criminal offences?
Andrew Cayley: I could probably just say yes to what you said. I am not an expert on it, but obviously I have looked at the statistics and it is pretty shocking. You may know more about this than me, but the reason the law was changed was that bail provisions were so complicated. They brought in this system of RUI, and of course those cases were not prioritised in the CPS. You get exactly the problem you are stating; cases just get forgotten about because somebody is released under investigation and then they never get charged.
I think, to answer your question, that you gave me the solution within it. Certainly, the CPS and the inspectorate have to work with the police to sort it out. My understanding is that the police had problems with the implementation of the legislation back in 2017. I do not know all the details. You may know more about that than me. There were problems with implementation, but everything I have read indicates what you are saying. There have been massive delays in cases, and that has to be addressed.
Q35 James Daly: My second question is related to child sexual exploitation and sexual offences. One of the concerns in my part of the world is that in the last few years cases that involved the most horrific sexual abuse have not been investigated properly, for a wide variety of reasons. How do you view the role of the inspector in keeping an eye on that and being able to supervise it? I am sure it is not just in Greater Manchester or in other parts of the country. We have experienced in my area—the wider geographic area—a complete lack of responsibility from the local police, not all of them, to investigate those very serious offences properly. Again, very serious matters have just disappeared into the ether. There does not appear to be anybody supervising that process.
Andrew Cayley: I am not in any way wishing to pass the buck because I know you are dealing with your constituents who are coming in and telling you this stuff. These crimes are appalling. Of course, the responsibility for that would lie with the inspectorate of constabulary. Certainly, if what you are saying came to my attention, and information like that was brought to me, I would go to the inspectorate of constabulary and say to them, “This is something that needs to be looked at. Whatever help we can give you, if there needs to be a joint report, we will help out on this.” There is joint work between the inspectorates. Certainly, in relation to those kinds of crimes, Mr Daly, you can see the background to the work I have done. I have seen some fairly appalling things in my career. I take them seriously.
Q36 James Daly: The point I am making is that once these cases are investigated by the police, even indirectly, they come under the auspices of the Crown Prosecution Service in terms of the review of the evidence, and certainly in cases such as CSA. I think it is important to say that the inspectorate’s role should include the supervision of how these matters proceed in the joint partnership. After arrest, it should not just simply be a matter for the police. It should be a matter for the CPS to be involved in the process as well.
Andrew Cayley: I accept what you are saying. It has always been an issue, and it was an issue in my last job at the SPA. The prosecution service does not have a legal supervisory function over the police. I am not saying that it does not have responsibility to look at these things, but supervising the police is a difficult area.
Again, I am not abrogating responsibility. I think you have an obligation to speak up, but you cannot actually supervise what the police are doing. You can advise the police on what they should do in a particular situation, but in the end it is the decision of the police whether or not the case eventually comes to the CPS, accepting that the CPS can go to the police and say, “Look, I really think this should come to us.” The CPS is now often involved in advising on cases long before they get charged.
There is a complexity in that relationship that does not make what you are saying entirely straightforward. The moral aspect of what you are talking about is serious.
Q37 James Daly: I don’t think it is a moral aspect. It is just understanding that the way the criminal justice system works involves a very interconnected relationship prior to charge between the police and the Crown Prosecution Service. I would hope that being aware of that relationship was something that would be part of the role of the inspector.
Andrew Cayley: One thing I could say is that that relationship has never been legally defined. Maybe that is something for the legislature to do—to change and put on a formal basis what the legal relationship is between the police and the CPS.
James Daly: Thank you very much indeed.
Q38 Chair: We have covered a fair bit of ground. Mr Cayley, are there any points you want to make to us that you feel have not been adequately covered?
Andrew Cayley: No. Thank you very much for hearing me this afternoon.
Chair: Thank you very much for your evidence, Mr Cayley. As you know, we will now go into private session and consider our report, which we hope to get published very swiftly and as soon as possible. We will make sure that you are promptly notified. Many thanks for your time and for your evidence. The evidence session is concluded and the Committee will now go into private session.