Attorney General's Office

Attorney General: speech to CPS Crown Advocates conference

The Rt Hon the Baroness Scotland of Asthal QC

First, I want to thank you for the passion and commitment to justice that you bring to your work as Crown Advocates conducting criminal prosecutions on behalf of the public and in the public interest.

This has been a long, difficult and perhaps tortuous journey and I have watched your commitment and courage with admiration.

I know that your role is not an easy one. You bear heavy responsibilities in your casework and in court. Your role and competency are very much in the glare of public scrutiny and subject to comment within the profession. I know that can be an uncomfortable place to be, and that there has been unfairness in that public discussion.

The Director will be talking to you later about the future for Crown Advocates, and indeed the future for the internal and external advocacy services as a whole. His interest in parity of treatment for the employed and self-employed Bar cannot be over-emphasised.

His careful and fair-minded approach towards the advocacy question, his interest in parity of treatment for employed and self-employed advocates and his belief in high-quality, cost effective advocacy services being provided are the important core principles guiding him.

I have seen at close quarters also his fierce commitment to Crown Advocates, his insistence that you are shown respect and that your professionalism should be properly recognised.

My own purpose today is to play my part in helping you go away from this conference with enthusiasm, and with a renewed sense of achievement, purpose and direction.

And most importantly, that you renew your sense of pride in the role you play in making the Crown Prosecution Service a high performing and highly respected prosecuting authority. There are people in this room who have been on this journey with me.

A service that excellent lawyers and advocates should aspire to join, and whose staff display an expertise and professionalism that inspires public confidence. One of the joys has been to witness people from the self-employed Bar join us because they think it has become a challenging profession to join.

This is my first opportunity to speak to and meet you as a group, so you might want to know something about my background. I started at the Bar in 1977, specialising in family law, children's law, mental health and housing law, as well as public law.

I was made Queen's Counsel in 1991 and became a founder member and Head of chambers at 1, Gray's Inn Square - so I have personal experience of the pressures of setting up a new practice and having to attract and keep new clients.

My professional experience, including in public inquiries into the circumstances in which children have been abused or murdered, such as the North Wales Child Abuse Inquiry, and inquiries into the deaths of Tyre Henry and Kimberley Carlisle, have given me a visceral commitment to seeing justice done, especially for those who are vulnerable to cynical exploitation and physical abuse.

I have an equally visceral commitment to ensuring that the Crown Prosecution Service stands up for those vulnerable people, if the worst happens.

I have my own battle-scars from the front-line of professional practice; and I fully understand the pressures, anxieties and fine judgements as well as the rewards that go with taking difficult casework decisions.

There is no doubt that the criminal justice system has changed greatly during my years in practice. But perhaps the pace of change, particularly in relation to the role of the prosecutor, has been greatest in the last five years or so.

The powers of prosecutors are now massively enhanced. Prosecutors play a much greater proactive role alongside investigators in building better cases; and they are increasingly responsible for victims and witnesses, helping them to feel guided through, and cared for throughout the criminal justice system.

Prosecutors have a much more central role in the justice system acting on behalf of the public and in the public interest than they have ever had before. And that places great responsibility on our shoulders as individuals and as a Service. You are now the gatekeepers to the criminal justice system and the effective minister of justice in each case.

If the public are to have confidence that the system of justice is effective and fair, prosecutors must be seen to be enforcing the law competently, objectively and with sound judgement.

They must be seen to use the full range of powers that Parliament has given you to do justice.
Victims and witnesses must be helped by you to give their best evidence.

And those affected by your decisions must see you willing to explain and be as open as you can be about the factors that led you to make those decisions.

If you do all that, then - whether you decide to prosecute or not, whether a defendant is convicted or not and whether others agree with you or not - you will deserve to command public confidence.

In performing this difficult role, you are accountable to the Director as Head of the Crown Prosecution Service. He in turn has a statutory relationship with the Attorney General. That statutory relationship means that as Attorney General I am accountable to Parliament for the work of the Crown Prosecution Service. Therefore I am personally accountable for each and every thing you do.

The Solicitor General and I take very seriously our role in protecting your ability to take independent decisions according to the law and the Code for Crown Prosecutors, so that your judgement is not compromised by improper or partisan pressures, whether these come from MPs, members of the public, single issue interest groups or from within government. Or sometimes all of them.

When we are consulted and give advice on cases, we do so as Law Officers of the Crown - like Crown Prosecutors - independently of Government.

But independent decision making has to be properly informed by all the relevant factors.To maintain the public's respect for your independence, your decisions must display good judgement and intellectual rigour. Case management must show the kind of grip that ensures that issues and risks are foreseen, faced up to and well managed; and that decisions are reached as quickly as possible.

On a regular basis - through written and oral Parliamentary Questions, through correspondence and meetings with Members of Parliament raising cases on behalf of constituents, and through Select Committees - the Attorney General is called upon to answer for the CPS's policies and practices and the handling of individual cases big or small anywhere in the country.

I answer for the decisions you take and for your approach to specific issues.

In difficult circumstances - such as a spectacular case failure, especially where it raises wider issues of prosecution practice, policy or competence; or when there is a very controversial decision to prosecute or not to prosecute - Parliament may call the Attorney General to account on the floor of the House very quickly indeed. Nothing concentrates the mind more.

Usually the Solicitor General and I are called upon to - and do - robustly defend the propriety and correctness of prosecution decisions or actions against this kind of criticism. We try to help Parliament and the public understand the principles on which you made your decisions.

The usual complaint is that the problem could and should have been foreseen and guarded against or managed better, and it is very tempting for others to apply the perfect vision of hindsight to judge harshly the actions of prosecutors.

Though for obvious reasons the detail we as Law Officers can give to Parliament about individual cases is sometimes limited, MPs and Peers can be confident that we know the full facts; and that we will have probed and scrutinised the decision or policy or practice before answering.

We need to be clear, though. Where something has gone wrong; where risks and problems should genuinely have been identified or should have been managed better, we expect to be able to admit it quickly and ensure that steps are taken for future cases, to learn the lessons. And learn them once.

The Law Officers will often have been consulted or kept informed about issues arising in particular cases: those which raise particularly difficult public interest considerations or which raise wider issues of prosecution policy or practice. In that way we can offer advice and give the Director our backing.

With our foot in Parliament as Ministers, and with our roles as Law Officers of the Crown protecting the rule of law and guarding the wider public interest, we are in a good position to help the CPS to ensure that prosecution policies, practices and priorities are informed by a sound understanding of the context in which you operate on behalf of the public.

Part of the picture of prosecutorial competence that I wish to promote and highlight is a more joined up approach to the wider cross-cutting impact of cases. Where the issues in your case may have an impact on the effectiveness of the law, or on wider prosecution policy or practice, whether within the CPS or across other prosecuting authorities such as the SFO, RCPO and the wider prosecutorial family, we expect this to be spotted and the links made, so that the right degree of co-ordination can take place.

My relationship with you is a two way thing. I will always support you in taking difficult decisions.
In return, what I expect from you is to adhere in your casework to the principles of good judgement, intellectual and legal rigour and competent case management, alerting, warning and briefing your Chief Crown Prosecutors and the Director, appropriately.

I want to focus on one particular area of practice in which as Attorney General I am personally heavily involved, and that is unduly lenient sentence cases.

I want to talk about ULSs generally, but also to highlight an aspect of casework decision making that I see daily in my ULS practice, namely decisions by the CPS to accept pleas.

In broad terms the purpose of making a ULS reference is to enable the Court of Appeal to increase a sentence which is so lenient that it damages public confidence because it falls outside the range of sentences that the judge could reasonably have considered appropriate.

We are not looking to the Court of Appeal to tweak a sentence or make a marginal difference. We are looking at cases where the sentence is unjust or wrong in principle and needs to be corrected.

Sentencing is not a mathematical calculation. It requires judgements to be made about the weight to be attached to all the relevant considerations, including how sentencing guidelines and the law should be applied.

It may be reasonable to pass a sentence which is lenient - or which is harsher than the guidelines might suggest - on the particular facts of an individual case. An experienced judge who has heard all the evidence is usually well placed to evaluate the competing considerations and - in comparison with the large numbers of sentences passed in the Crown Court every year - very few sentences indeed are held to be unduly lenient.

In 2008 the Law Officers were asked by the CPS or by victims, MPs or members of the public to consider the sentences imposed on 274 offenders.

Of these, 248 fell within the scheme and each one of these cases was considered personally either by me or by the Solicitor General within the absolute time limit of 28 days that the law allows.
That means we personally reviewed on average between 4 and 5 cases each and every week.

In 2008 we decided that the sentences imposed on eighty defendants appeared to us to be unduly lenient and we referred these to the Court of Appeal for review. Of these, nine references were subsequently withdrawn because additional information was drawn to our attention after referral which affected our assessment of the case. This left seventy one sentences to be considered by the Court.

The Court found that the sentences imposed on fifty seven or 80% of these offenders were unduly lenient, and went on to increase the sentences in fifty one cases or 72%.

While the Court of Appeal may wish that we referred fewer cases, as you can see from these figures we do turn down many cases that are referred to us. We are proud of the high rate of success in those cases we do refer. I want you to know that the Lord Chief Justice has said how appreciative he is of the excellent standard of work that he sees in the cases which are referred to the Court of Appeal.

This is a tribute to the whole team, from Treasury Counsel to the lawyers in the Attorney General's Office to the ULS team in Special Crime Division and Chief Crown Prosecutors who are personally accountable to the Director for decisions within the CPS to refer these cases for my consideration.

One essential component of any evaluation of whether a sentence is unduly lenient or not, is whether there is a clear articulation of the facts on which the sentence has been passed. The importance of this arises most of all where pleas have been accepted.

The basis of plea can make a big difference to the sentencing bracket that applies under sentencing guidelines or case-law. Prosecuting counsel, whether a Crown Advocate or not, should not accept a basis of plea which is different from the case originally advanced by the prosecution without considering the impact on the likely sentence.

Where the basis of plea is fudged, or where it is significantly different from the known facts, or where no record has been kept and prosecuting and defence counsel have different understandings of what was agreed at court, it can have a profound impact on whether it is realistic or possible to challenge the sentence that is then passed.

You may think that the sentence is unduly lenient compared with the sentence that would have been passed on the prosecution case originally put forward, but that sentence may no longer be reasonable, or may not even be open to the judge, on the basis of plea accepted by the prosecution.

An audit by HMCPSI published in November 2008 found that the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in Sentencing were not always being complied with.

The required written analysis of sentencing considerations was not being undertaken in all Crown Court cases and the quality of the documents that were being produced was highly variable.
I have reviewed the Attorney General's Guidelines in light of the HMCPSI's findings, in close consultation with the CPS and prosecutors outside the CPS such as the Department for Work and Pensions and Business Innovation and Skills; and with the benefit of input from the judiciary.
My top priority is to secure the quality of decisions to accept pleas, and to ensure that prosecutors consider and appreciate the potential impact on the likely sentence. This is of critical importance if we are to support the courts in passing just sentences that fully reflect the harm to individuals and to society that has been caused by the offending.

I therefore attach special importance to the fulfillment by prosecutors of this aspect of the Guidelines. The revised Guidelines, which I am publishing at the beginning of December, now require a written basis of plea to be prepared in every case except where the prosecution case as it stands is accepted.

On the other hand, I am somewhat relaxing the requirement to prepare a written document setting out sentencing considerations and relevant case law or guidelines in every case. I have changed that part of the Guidelines to allow discretion to be exercised, so that such documents will be prepared where the prosecutor considers that it would assist the court or where the judge asks for it. The CPS has revised its internal guidance and the special form used for this purpose, and these are also being published today.

This change does not alter your responsibility to be ready to assist the court in every case during the sentencing process, in line with case law. All it alters is the requirement to produce a written document in every case. This is an opportunity for us when we take charging decisions to look at what the guidelines and authorities may say. It may also save time looking up the most recent pronouncements before you go to court.

Equally the change does not prevent other prosecuting authorities such as DWP, the Health and Safety Executive or the Department for Business from producing such a document in every one of their cases. They do so because it assists the court to be provided with a package of sentencing case law and considerations in relation to relatively less familiar offences.

I recognise that many of you would welcome support in knowing how and when to challenge bases of plea that are illogical or significantly affect the likely sentence, and fulfilling your role in the sentencing process generally. The HMCPSI audit highlighted that there had not been sufficient focus on training or information to equip prosecutors fulfill this part of your role.

The Director and I have discussed some of the cases that I have seen over the last few months, and I know that he is committed to an active programme of mentoring and training for CPS advocates and prosecutors to enhance the Service's confidence and ability to play the role that case law delineates for you in the sentencing process.

I hope also, that this renewed focus on the prosecutor's role in the sentencing process will also provide a springboard for CPS advocates helping to ensure that victims and families - and police liaison officers too - fully understand what a sentence means in practice.

For example, indeterminate sentences for public protection are not always well understood. Sometimes the minimum period of imprisonment is interpreted as being the whole sentence, and that the time actually served with be half that period.

The fact that the sentence is in fact indeterminate just like a life sentence, and that the minimum period is just that - the minimum period - to be served before parole can be considered, and that parole is only granted if the Parole Board is satisfied that it is no longer necessary to detain the offender for the public's protection, is sometimes overlooked.

No doubt the lengthy calculation that the judge has to announce as to how he reached the minimum sentence does not help.

It is an important part of prosecuting counsel's role to ensure that families are not unnecessarily upset by a sentence because of misunderstandings of this kind. So the HCA's role is very clear. Do please explain sentences to families, and ensure that Family Liaison Officers also understand what the sentence means.

I very much welcome the Director's, Peter Lewis's and Alison Levitt's commitment to actively supporting the CPS to fulfill its important role in the sentencing process.

And I know how seriously you take this role. In my ULS practice I see many difficult cases that have been handled with exemplary care and attention.

I started my talk by thanking you for all your hard work, passion and commitment to the highest professional standards. I reiterate my thanks to you again.

Your professionalism is critical to the ability of the CPS to offer an excellent service to the public in the interests of fairness and in the interests of justice.