Our justice system needs fixing — and change at the CPS is only the start

The real damage is to those accused in lengthy processes and who have their names dragged through the mud
Anne McElvoy
Andrew Matthews

Alison Saunders, the outgoing Director of Public Prosecutions, insists she resigned and was not pushed out. This reflects the letter rather than the spirit of the law of departure from public office. It was practically written on the walls in Whitehall that she would not be offered a second term.

Truly, it is bruising to have a period of often thankless work written off in a welter of adverse headlines. But after the failures and missteps as persistent as the Crown Prosecution Service has made recently, those who lead it should resist the temptation to roll themselves into a hedgehog ball.

The CPS is a mess and many who encounter it professionally know that and worry about its leadership. In fairness, this reflects the complexity of its task — to bring cases with a solid chance or a conviction while following political instructions to take certain categories of offence more seriously, from historic sexual abuse to rape and hate-crime.

Egregious failures involving evidence and its disclosure to the defence have led to the collapse of a string of trials, often involving rape or alleged sexual assault but also affecting trials for human-trafficking and murder. The number of aborted trials, often at the 11th hour, has soared by 70 per cent in the past two years.

The CPS says this is a small proportion of the crimes it prosecutes, but the impact on the lives of individuals is vast and the rising numbers of abandoned prosecution hints at deeper malfunction.

Having taken on the role with the laudable determination to make it easier for women to report and give evidence in rape cases, Saunders ended up overseeing a service that is increasingly in disrepute over outcomes and a sense that it has retreated into a bunker of defensive complacency.

Anne McElvoy

Her own defence is contradictory. She swipes at cuts to the service (a justified complaint given the scythe taken to criminal justice budgets but not one that can wholly account for this mess). Then she tells us the service is getting better — which hardly anyone believes and, if it is, it has a funny way of showing it — while a recent wide-ranging review concludes that problems are persistent and have proved hard to address.

Add to this a bizarre suggestion that no one is in prison who should not be despite clear failures in the disclosure of evidence in several cases — and the impression is that the DPP boss fails to see the wood for trees.

The next CPS chief will almost certainly be drawn from the ranks of criminal barristers, rather than a CPS lifer. But the failures here are also those of a police and criminal justice system struggling to catch up with technology.

The problem is nailing down in practice what should follow from this. Good intentions that lead to less faith in the law are not effective. So a policy shift in the wake of the Jimmy Savile revelations and other serious cases of historic sexual abuse led to the extraordinary instruction that police should start out believing complainants —to the point of calling them “victims”.

It hardly takes Dr Watson to deduce that this would likely skew police outcomes away from looking for countervailing evidence. Even where police forces are being as diligent as they should be (and there is a worryingly wide variation in competence) there are pitfalls in police forces seeking digital evidence to nail prosecutions while being enjoined to track mitigating material in the haystack of social media.

The (female) chair of the Criminal Bar Association has claimed that barristers face “a daily struggle in respect of disclosure, delays and all the other disastrous consequences of a system that is at breaking point”. Quite possibly, it will be resolved only by appointing specialists to review disclosure material — which will add to costs but would save the waste of abandoned trials.

The real cost and damage is to those accused in lengthy processes and who have their names dragged through the mud, but which never come to court — or if they do, should not have done, such as Oliver Mears, the student whose case was dropped after a shocking two years on bail, or Liam Allen, who has received an apology after the disclosure of 40,000 text messages revealed that his accuser had pestered him for sex.

These are stories of failures that point to a state machinery lagging behind the way that people live their lives. But politicians and pressure groups also bear responsibility.

The aim of achieving a higher number of solidly grounded rape and sex-crime convictions cannot be achieved by simply pursuing a rise in the volume of cases that come to trial, regardless of how justified the accusations are. Spasms of interest in subjects that were once hidden by shame mean that institutions lurch from denial to panicky desire to hit new targets.

A determination to address sexual conviction rates coincided with a crass oversteer at the top of policing in favour of the complainant. It is good news that Cressida Dick, the Met chief, has now spoken openly about rethinking that. Those bringing complaints should be treated with dignity and sensitivity but that is not the same as a presumption that they are right.

One way or another, the impact of technology on the implementation of justice is going to vex us. A generation has grown up confiding intimacies via social media and testing limits of admissible evidence about private communications, but the fundamentals of justice don’t change.

Treat complainants with respect then follow the evidence and focus most of all on how to enhance its fair collection and dissemination. Anything else may be astute special pleading — but it isn’t justice.

  • Anne McElvoy is senior editor at The Economist