Creating A Modern Public Prosecution Service: Our New Contract With The Community
6 May 2009 The Rt Hon the Baroness Scotland of Asthal QC
Attorney General
It is a pleasure and a privilege for me to make the keynote speech at this conference, organised by the Revenue and Customs Prosecution Office, at this key point in the development of independent prosecution services in England and Wales.
As this audience will know, the role of the prosecutor has changed and evolved over time, and expectations of prosecution services have, rightly, never been higher. Crime is more complex than ever and crosses organisational and functional boundaries. More and more frequently there is an international dimension.
The question of when and how we should prosecute has become an increasingly vexed question. As prosecutors seek to become part of prevention as well as interdiction, the need to understand the context in which we work, and the role played by other regulators and prosecutors from other disciplines become ever more acute and no more so than in the field of economic and fiscal crime. The effect of economic turbulence enhances the need to be vigilant and excellent in the protection we provide for the public.
The Directors and I share a vision that, in the face of these challenges, we should be clear about the role of a prosecution in a modern regulatory environment and be looking to extend the expectations of us now, and in the future. There are several important steps we are taking to enable us to do so - including the merger of the RCPO and CPS.
The merger of the CPS and RCPO will enable us to deliver enhanced specialist services for the most complex and demanding cases, investigated by the police, the Serious Organised Crime Agency, the new UK Border Agency and HM Revenue and Customs. It will allow us to be more flexible in response to crimes which may cut across or involve cooperation between these investigators. This enhanced public prosecution service will also, through our community prosecutor approach, be ever more responsive to community concerns, working closely with neighbourhood policing teams, using a range of tools to solve local crime problems and increase public confidence and responding flexibly to their differing identified needs.
First, a little background, and some history. My departments are a collective, under my superintendence or sponsorship, with a range of different functions but with some common golden threads- threads of independence, guarding the rule of law and protecting the public interest. My departments include three statutory prosecuting departments, the CPS, RCPO and the Serious Fraud Office (SFO), together with the Treasury Solicitor, my own Office, HMCPS Inspectorate; and the newly formed National Fraud Strategic Authority (NFSA), a small executive agency set up in 2008 following the 2006 Fraud Review to coordinate counter-fraud activity. As Attorney I also exercise non-statutory superintendence and support to a range of departments and agencies which prosecute offences.
These arrangements, especially those for prosecuting offences, have developed over time, and in response to specific concerns, reviews and reports.
Almost 30 years ago the Royal Commission on Criminal Procedure ("the Phillips Report") recommended the creation of a locally based but nationally accountable prosecution service. The report assessed the prosecution system against the criteria:
-is it fair?
-is it open and accountable? and
-is it efficient?"
Subject to an overriding test of whether the system had the confidence of the public it served. A central feature of the Phillips proposals was that there should be a division of function between police and prosecutor. The CPS was set up by statute, commencing in 1986.
The Serious Fraud Office (SFO) commenced operations in April 1988. The 1986 Roskill Report, which led to its creation, recommended that investigators and prosecutors should operate as one team on the basis that unified control and direction, together with staff with the necessary skills, were essential features to combat the threat posed by serious fraud.
The RCPO was launched on 18 April 2005, against the background of the termination of several high-profile Customs cases, and two separate reviews. The Gower/Hammond review in 2000 had identified the need for the prosecutors to be independent of the investigators; and the Butterfield report in 2003 recommended "a complete separation of the prosecuting function for HM Customs and Excise's (HMCE) criminal cases from the organisation itself, through the creation of a separate prosecuting authority." In the meantime the Treasury had reviewed HMCE and the Inland Revenue and concluded that they should be merged, so it was decided that the Inland Revenue prosecutions would join the new independent prosecuting authority, the RCPO.
And that decision has been proved to have been right. Under David Green's strong and effective leadership, the RCPO has developed into a professional and capable organization, which has secured increasing confidence on the part of the judiciary and the public that these difficult and complicated customs and tax cases can be successfully prosecuted. Since 2005 RCPO has completed more than 5,400 cases, involving more than 7,000 defendants, with a 90% conviction rate, and has enforced confiscation orders of more than £90m from convicted offenders. Today you will hear from David about some of these cases, and I am delighted to be able to set out some case studies myself - and pay my own personal tribute to David and to all his staff in the RCPO- to illustrate both the progress he has made and to exemplify what we can and should be expecting from a modern public prosecution service. As I have said, based on these achievements we have now been able to analyse how we could be even stronger to face today's challenges, as well as able to get ahead of what is around the corner.
Criminals are increasingly multi-faceted, operating across both functional and national boundaries. A modern public prosecution service needs to be capable of working collaboratively and internationally. You will be hearing later today from colleagues in Europe with whom RCPO are working As an example of such successful cooperation, in May 2008, 12 men, part of a major UK drugs network, were found guilty of smuggling large quantities of heroin and cocaine into Britain from the continent. The operation had spanned three countries with investigations and evidence taken in the UK, Belgium and the Netherlands. The men were sentenced to 125 years behind bars following the conclusion of a case marked by successful co-operation between RCPO, the Serious Organised Crime Unit of Lancashire Police, and the Serious Organised Crime Agency.
This case was complicated due to the number of defendants, one of whom at the time of the investigation was in hiding in Belgium from a separate money laundering charge. Lawyers in RCPO's International, Policy and Advisory Division applied for a European arrest warrant to bring him back to the UK to force him to answer both sets of charges. This involved close co-operation between RCPO and law enforcement agencies in the UK and Belgium to ensure that his arrest and property search happened at the same time as the arrests and searches of his co-conspirators in the UK, so that none of them were forewarned of the intentions of the investigators. In a series of co-ordinated early morning raids, more than 200 police, including dog handlers and firearms officers, swooped on 22 addresses in Hyndburn, Merseyside and Belgium, and the whole gang was successfully arrested, and subsequently prosecuted.
Bringing together RCPO's international capability and skills with those in the CPS will provide an enhanced international capability across the piece. Both services have invested in the skills of their staff and in developing capability.
RCPO has also developed significant expertise in prosecuting tax offences.
In February 2009, the specialist direct tax division secured the conviction and sentencing of a businessman who had misappropriated more than £220,000 of his customer's money into offshore bank accounts in order to avoid paying tax.
This man, who ran two security systems firms in Worcester, pleaded guilty to two counts of cheating the public revenue and two further charges relating to VAT payments. Over many years, he had diverted company income into his own personal off-shore bank account in Jersey. He would ask customers to make cheques payable to him personally rather than to his business, and these sums would not pass through the books and records of the company. Although individual sums were relatively small, over the course of six years of trading, he had siphoned money away amounting to a very significant tax loss of over £98,000.
Tax evasion deprives the exchequer of revenue that would otherwise go into funding public services, such as paying the salaries of teachers and nurses and funding hospitals and care homes. This tax criminal was sentenced to 18 months in jail, and .confiscation proceedings will be brought against him to ensure that the money lost is returned to the public purse. RCPO lawyers also applied to the court and were successful in having him disqualified from acting as a company director for five years from March, in order to ensure the offence is not repeated.
So looking forward the merged service will contain a specialist tax prosecution service, ring-fenced for a transitional period but working closely with the rest of the organisation, allowing as necessary for joined up prosecutions where a criminal has engaged in drugs crime, gun crime and tax crime at once.
The new organisation will also allow for a joint prosecution approach to border crime, which may involve the smuggling of goods as well as illegal entry of people.
As HMRC staff here will know, protecting the border can be a public health issue as well as a crime or immigration issue. It is illegal to smuggle meat, animal products and some plants into the UK from a non-EU country, and all meat imported from outside Europe should be checked by a vet at the point of entry into the country and certified as safe. There is evidence that some of the health epidemics of recent years may have been caused by poor quality meat coming illegally into the UK.
In September 2008, RCPO secured a conviction against a woman for illegally importing bush meat in the form of smoked cane rats.
In January 2008, a consignment of synthetic hair was intercepted at Tilbury docks. When HMRC officers opened the non-refrigerated container to examine the contents, they discovered boxes of synthetic hair at the front of the load, but behind these they found more boxes containing hundreds of
illegally imported cane rats from Ghana. The headless carcasses, individually wrapped in newspaper, amounted to 340kg of meat with a street value of around £25,000.
This was an unusual case for RCPO and the largest they have ever prosecuted under these regulations. Such cases are rare, and the lawyer and case manager put in many hours of research into this case, including going through DEFRA papers on the microbiological hazards of bush meat, doctorates on the bush meat trade and an officer visited London Zoo to talk to veterinary scientists in order to find out about the health implications of illegally imported meat.
Alongside the evidence gathered at the port of entry, detailed analysis of telephone evidence confirmed communication between the defendant and importing agent, and cemented the defendant's guilt.
As these and other cases show, the role of the prosecution services in supporting investigators and ensuring offenders are brought to justice has expanded significantly. The introduction of statutory charging in 2004 puts the prosecutor at the centre of the criminal justice process, routinely
providing face to face charging services to the police and other investigators. Prosecutors routinely advise on and guide investigations, and advise on investigation strategy and deployment of resources. They have an increasing set of powers to divert from prosecution and can deploy an increasing range of tools for solving crime problems. This provides the basis for increasing prosecution involvement in the development of crime reduction strategies and policies, including setting the framework for decisions whether it is in the public interest to commence a criminal investigation with a view to prosecution, particularly where investigators or regulators have powers to use a range of civil sanctions, or other outcomes falling short of prosecution.
Later in the conference you'll be hearing from Ian Milne of the Serious Organised Crime Agency and from Mike Eland of HM Revenue and Customs about the use of civil orders.
As an example of their potential, in June 2008, RCPO made the first ever use of a Serious Crime Prevention Order in England and Wales in the prosecution of three individuals for money laundering. The three offenders received a total of 17 years imprisonment for their part in laundering cash for
organised crime networks. Three Serious Crime Prevention Orders were secured against them at Isleworth Crown Court in the first ever use of this new legislation.
Serious Crime Prevention Orders were created by the Serious Crime Act 2007 which came into force in April 2008. They allow SOCA and other law enforcement agencies to apply to a judge to place conditions, restrictions or requirements on those involved in serious crime. The purpose of an order is to protect the public by preventing, restricting or deterring those involved in serious crime from continuing their involvement. Breach of a Serious Crime Prevention Order is punishable by up to five years' imprisonment and an unlimited fine. A Serious Crime Prevention Order can last for up to five years from the date on which it commences.
The Serious Crime Prevention Orders secured in this case mean that for five years from the day these three offenders are released from prison, they will be at risk of an additional five years in prison if they breach the terms of their orders, which are designed to stop them carrying out activities related to the possession and movement of money.
As well as growing in expertise and professionalism, operating across international boundaries, working ever more closely with investigators and using an expanded toolbox, prosecutors are increasingly engaged with the people they serve, routinely engaging with victims and witnesses in person, and explaining decisions to communities and the wider public to increase public confidence that the criminal justice services are on their side.
A significant contribution to public confidence is the knowledge that criminals will not be able to enjoy their ill-gotten gains. The RCPO has developed much expertise in using the legislation provided by Parliament to recover the proceeds of crime. An example is a recent case of a VAT fraudster ordered to repay £26 million
On 20 November 2008, RCPO sought and was granted a confiscation order for £26,060,383.17 against a man who had been convicted earlier for his part in a major VAT fraud. This was the second largest confiscation order obtained by RCPO against a single defendant.
The order was intended to strip the offender of the profits he gained from his part in a crime perpetrated by a gang who fraudulently manipulated the VAT system through the import and export of mobile phones.
The fraud finally came to an end when RCPO successfully prosecuted this man, who was sentenced to a total of 12 and a half years imprisonment in 2006, alongside other members of his criminal gang.
Among his assets in the UK were an impressive portfolio of properties, including a stately home, Meaford Hall in Staffordshire worth about £2.5 million, a helicopter, a pleasure craft known as the 'Liquidator' and items of jewellery worth hundreds of thousands of pounds. If he fails to pay up in full he will be liable to serve a further 10 years' in custody.
I know that today's audience includes eminent and expert members of the Bar who are on the Unified List of Standing Counsel, and who play a very significant part in these and other successful outcomes. I am aware that there may be some concern amongst you about the future of the List. No final decision has yet been made for the long term. But we are very keen to retain the expert knowledge and the very good progress that has been made by RCPO in controlling and owning the flow of work to Counsel- not just on behalf of RCPO but a number of other authorities. We are working on the basis that, at least for the transitional period, the Unified List will remain available to the HMRC function within the merged organization.
Just as the RCPO has developed an expert and effective service for prosecuting complex cases, working across international borders, and confiscating the assets of criminals, over the last few years the CPS has shown it is possible to run a country-wide locally-facing service which is increasingly effective and efficient, and which also includes highly effective specialist divisions, such as their Specialist Crime and Counter Terrorism Divisions, both positively reviewed recently by HMCPSI, and an Organised Crime Division.
Under the recently appointed Director of Public Prosecutions, Keir Starmer, the CPS has recently announced a new development which will build on its pioneering work with victims and witnesses, its hate crime scrutiny panels and its community engagement work. This is the launch of a community prosecutor approach, which will be piloted in more than 50 areas across the country from the beginning of next month. Community prosecutors will work with the police, courts and others to ensure that they know what the public's priorities are and take them into account. They will know their patch, and will ensure that prosecution decisions are informed by community concerns, and that they (and their outcomes) are both communicated and explained to the public. This is a very significant step forward in the development of a modern public prosecution service, and in our new contract with the community.
So we have two strong healthy departments, providing excellent prosecution services, developing and improving.
Why change?
The strong leadership and increasing professionalism of the RCPO, and significant developments in the capability and strength of the Crown Prosecution Service, have not only enabled us to deal effectively with the challenges of the last few years, resulting in many successes, but have also enabled us to analyse what we need to do to make us strong enough to tackle the new challenges we now face, and have enabled us now to make an important decision to merge these two healthy organisations into an even stronger, more flexible and resilient service for the future.
And it will be based primarily on the strengths of the people already working in both organisations, including many people in this room. I know that both Directors, together with Peter Lewis and David Richardson, who are overseeing the transition, have now made a strong commitment that
•on a date to be agreed soon, all RCPO and CPS staff will become members of a combined organisation. They will be part of either a ring-fenced HMRC function, to be led by David Green on a transitional basis, or part of the merged work areas that are most closely aligned with their existing function.
•any organisational changes resulting from the merger will apply to RCPO and CPS staff equally, from within the combined organisation. We want to assure all staff that any necessary changes will be approached from the perspective of the combined organisation.
•as an immediate step towards the merger, from 3 May 2009, all vacancies arising in either organisation are now open to all RCPO and CPS staff, and applications will be treated as if they were internal. Arrangements are being put in place so that the RCPO and CPS intranets allow access to information about advertised vacancies in both organisations
I don't believe in change for change's sake. I do believe in continuous scrutiny and improving the services we provide. I have been leading a programme of reform since my appointment as Attorney General in 2007. The role of the Attorney General has been reviewed, and is being and will be reformed, including through legislation in due course. As part of this programme of reform we are introducing a new protocol between the Attorney and the Directors, to safeguard their independence, now and for the future and at the same time to ensure proper accountability to Parliament and the public.
An important step for us over the last year has been the setting up of a new Strategic Board, chaired by the Attorney, and including all the Directors. The Board has been looking not just at where we are now, but at where we need to be in the future. With the investigators we have been looking (together, for the first time) at the challenges ahead, including the changing nature of crime, the ever-changing landscape of investigation, for instance the creation this year of the UK Border Agency, and the increasing complexity of cases. We have been taking into account the need to provide excellent services in increasingly efficient ways for the foreseeable future.
And it is on the back of that examination, and building firmly on the successes of the RCPO and of the CPS, that we have- collectively- decided to merge RCPO with the CPS to form a modern public prosecution service which will provide both excellence in specialist expert prosecution services, and the new community prosecutor approach, and which has the resilience to respond to new challenges in the future. There will be a chance for further discussion of the merger with an expert panel including the Solicitor General later on in the day.
Again I must pay tribute to David Green, and all the staff of the RCPO, whose achievements in taking forward the RCPO from the concerns which led to its inception to the successful organization of today - what David has described as "mission accomplished"- are what has made this new beginning possible, and to Keir Starmer who has contributed to our collective endeavours since his arrival and who will, working closely with David, provide strong and inspirational leadership to the merged organization.
Our new prosecution service will play a significant part in the Law Officers' Departments' contribution to enhanced public services for the future. It won't be the whole contribution. We shall continue to manage our contribution as a collective, overseen by our Strategic Board, including developing improvements to the arrangements for tackling serious fraud, and looking for more opportunities to increase efficiency savings by shared corporate services such as HR, facilities management, finance and IT. But the merger will provide huge opportunities- opportunities for staff, for the investigators and others we work with, and most of all for the public we serve- for improvements, delivery and effectiveness. I am grateful to David Green and Keir Starmer for making this far sighted decision, and to the staff in RCPO and the CPS whose hard work makes it possible, and I am optimistic for the future.