Earlier this month, Keir Starmer completed his term as director of public prosecutions. He tells Matt Ross how the Crown Prosecution Service has embraced open policymaking and digital working – and warns of tough decisions ahead.
Keir Starmer is not one of Civil Service World’s most senior interviewees, but he’s certainly one of the most high-profile. Throughout his five-year term, the just-departed head of the Crown Prosecution Service (CPS) made headlines – mainly whilst setting out guidelines on controversial legal issues such as assisted suicide, but also by intervening to defend the Human Rights Act against its eurosceptic and libertarian opponents.
Starmer’s regular media appearances mean that, as an interviewee, he’s a rather fast-moving target. When CSW met him last month – on a beautiful autumn day, with the sun flashing off the new City skyscrapers clustered outside his Bankside office window – he’d just been on Radio 4’s Today programme explaining his new child sexual abuse guidelines. And as your correspondent sat down last week to write the interview up – on the first working day after Alison Saunders succeeded him as director of public prosecutions (DPP) – the news emerged that he’d called for public servants who fail to report instances of child abuse to be prosecuted.
In part, Starmer’s high profile is an inevitable consequence of his status as an agency chief rather than a permanent secretary, with a degree of autonomy from political control; in part, it’s rooted in the strong line he’s taken on tackling sex crime; in part, it reflects his statutory role as a decision-maker on controversial legal matters. But he’s also made specific efforts to raise awareness of his role and organisation: “I think the public should know who the DPP is, and the basis upon which we’ve made decisions,” he says; he’s been keen to publish “publicly-facing guidelines that set out in advance how we’re going to approach difficult questions and issues.”
“Some of the decisions we’ve made in complicated and sensitive cases have huge ramifications for both the individuals concerned – the victims, witnesses and defendents – and the public,” he explains. “And my own view is that the more people know and understand about that, the better; so it’s been a deliberate policy to go out and explain ourselves. More people now would know what the CPS does than arguably was the case five or 10 years ago, and I think that’s a good thing.”
Publicly setting out the CPS’s approach to prosecuting potential offences, Starmer argues, is an important guarantor of its freedom from political interference. Starmer’s predecessor, Ken Macdonald, argued earlier this year that the next DPP should – like all those since the CPS’s foundation in 1986 – be recruited from outside the organisation: “This otherness brings a freedom to say no,” he wrote, because DPPs with another career to fall back on are more able to resist ministerial pressure. But whilst Saunders will be the first ever CPS staffer to rise to the top job, Starmer believes that the best “guarantee of independence and integrity” is not the DPP’s ability to walk away, but the existence of public guidelines against which the organisation can be judged. “If you want to hold the DPP or the CPS to account, what you need to know is how they’re going to approach a difficult problem and, when they make a decision, what are the reasons behind it,” he says. “Then, anybody can judge whether we’ve done as we said we’d do.”
On his successor’s success
As Starmer heads off for a (probably brief) sojourn in private practice, he clearly believes that Saunders should maintain the CPS’s proactive approach to publicity. And she is already making media appearances – though on the evidence to date, she may take a more cautious line than her predecessor: in her first broadcast interview, on Radio 4’s World at One last week, she was careful to avoid picking sides on any of the issues put to her (these, inevitably, included Starmer’s call for mandatory reporting of child abuse).
Of course, no sensible DPP would enter the job with all guns blazing; and Starmer sounds pleased about Saunders’ appointment, arguing that her promotion is “a sign of huge confidence in the organisation.” In the past, Ken Macdonald, argued, the CPS has been “hobbled” by “its dreary early backroom role and the resulting low morale of its lawyers, its lack of opportunities for advocacy and, above all, its crippling inferiority complex in the face of the overweening power of the bar.” But as Starmer points out, the appointment of a CPS manager to the job “sends a really powerful message to the next tier of leaders across the organisation.” Meanwhile, he’s been developing Macdonald’s policy of deploying in-house Crown advocates, creating specialist units so that CPS staff can develop the skills and experience to tackle more complex and challenging cases.
Asked what Saunders will require from other civil servants in order to make a success of the job, Starmer is clear: “Cross-Whitehall support for the changes that she needs to complete within the CPS; and she particularly needs the collegiate support of the Home Office and the Ministry of Justice.” Like most civil service bodies, the CPS is grappling with big budget cuts, and Starmer suggests that it’s realised most of the savings available from internal change: the rest will depend on changes in the wider criminal justice environment.
The CPS’s budget was cut by 27% in the last spending review, and Starmer expects to lose a further 5.5% in 2015-16: “The last five years have been the most challenging since the CPS was established,” he comments. Since taking the job in 2008, he’s whittled the CPS’s administrative areas down from 42 to 13; introduced standard operating practices; halved the 100-strong office network; and pushed hard on the shift to digital working. Further savings require more substantive reform: “As we go forward,” he says, “the criminal justice environment becomes more and more important.”
A more efficient justice system
As an example, Starmer cites the work undertaken to encourage defendants to enter a guilty plea early in the legal process, rather than waiting until the last moment. Three quarters of defendants do ultimately plead guilty, he says; CPS resources should be focused on the minority who maintain their innocence throughout their case, rather than being wasted on casework rendered redundant by a late guilty plea. So reforms have been enacted to entice guilty offenders to own up more quickly, and that’s “obviously meant we’ve had to work with the courts and the judges and the police, because it’s a collective criminal justice issue.”
In the digital field, too, efficiency reforms require collective action. Noting that this is one of only two areas of civil service reform that directly affect the CPS, Starmer argues that “the major transformation from paper to digital is one of the defining moments in the history of the criminal justice system. You could say it’s a bit late, but at least it’s happening. And you can’t do that on your own: we’ve had to work really hard with the police to make sure that we can get digital files from them, and with the courts to get files across to them.”
Now that the CPS has standard operating practices and a secure digital case-handling network, he explains, if one office is overwhelmed with work then “we can transfer that to another office at the click of a button, whereas in the past we’d have had to take it by lorry – and when it arrived, there would have been a slightly different way of working.” And digital systems are also changing how the CPS works with the police and courts: “There are many hearings in court that could be shorter, or not occur at all, if we were working digitally,” he says. “Very often, what you encounter is agreement between prosecution and defence for interim hearings, and that agreement could have been reached earlier had we been working digitally.”
Have cuts hit quality?
So criminal justice reforms and digital systems can make big inroads into waste within the CPS’s operations. But some commentators claim that the organisational changes and spending cuts already enacted inside the CPS have created more waste outside it – mainly within the courts. An Observer investigation in July argued that, ever since the CPS lost nearly a quarter of its lawyers, administrative errors and missed deadlines within the organisation have led to a rise in court delays and abandoned cases.
Starmer is well aware of the danger, accepting that “the exam question is: have you maintained performance, or are problems cropping up elsewhere?” He asked just that some years ago, he says – and to answer it, introduced a set of quantitative and qualitative performance measures: “We developed core quality standards for the entire organisation, setting out in very clear, practical terms what a good prosecution looks like. So every quarter we pull together all the objective data about success rates in both magistrate and crown courts across a number of offences, number of cases that fail because of prosecution reasons, etcetera, etcetera. We collect that data court by court, team by team.”
Meanwhile, Starmer continues, every year the CPS assesses 16,000 cases “against a set of quality questions, randomly interrogating them against a number of questions. Was the right charge brought? Was the right policy considered at the right point?” The “read-across” between these two data sets, Starmer says, enables him to say “confidently that performance has held up or improved in the five years I’ve been DPP. That’s a real tribute to the staff: it’s a considerable achievement to go through the sort of change that we’ve gone through, and to maintain performance at the same time. There are always stories about this case or that case collapsing, but if you look at all the figures then the general picture is one of improvement.”
And what if the cuts continue?
That said, Starmer goes on to sound a warning about the consequences of further cuts. “I’m confident that we can make the savings necessary for the 2010 spending review; we’re pretty well through that. I’m equally confident, because we’ve planned for it, that the 2015-16 savings we’re required to make will be delivered,” he says. “But there does come a point where you can’t keep taking money out.”
After 2016, Starmer suggests, the pipeline of process and organisational efficiencies will dry up, requiring ministers to make difficult decisions about which crimes to prosecute and how to use the courts. “If the criminal justice system is to cope with the savings that have to be made, then sooner or later a political discussion is needed about what you want your criminal justice system to do,” he says. “And therefore there is, I think, a space for a discussion about what we want to keep out of court; what we want to go into court; is there anything out of court that ought to go in; is there anything in that ought to come out; and how we dispose of what’s going in as efficiently and fairly as possible. And I think now’s the time for that discussion.” (see news.)
Listening more carefully
In one field, the government has already started making big decisions about how the criminal justice system operates: its proposals for legal aid reform have included bulk-buying work from major firms, and depriving defendants of the right to choose their own lawyer. And whilst Starmer refuses to give a conclusive verdict on these reforms before the final plans emerge, he sounds distinctly uncomfortable about them: in the CPS’s response to the consultation, he recalls, it argued “there should be broad parity between the prosecution and the defence; it’s not healthy to have a great mismatch.”
The CPS’s response also “supported the principle that there should be choice for defendants about their representation,” he recalls. “We ourselves use specialists for certain types of cases: the same must be true of the defence. And there needs to be proper remuneration for work that is necessarily carried out.”
If Starmer seems wary of some government policies, though, he warmly embraces the agenda around open policymaking: it is, he says, the second area of civil service reform directly affecting the CPS. In developing the child sexual abuse guidelines published on the day of our interview, the CPS “threw open the doors and said to interested expert bodies: ‘Come in and help us. It would be really good to hear what you think our policy should be, and why’.”
Holding round table discussions with groups such as victims, judges, lawyers, police and education staff, he recalls, “we were able to go through the sort of policy work that would otherwise have been done behind closed doors, and come out with guidelines that most people now think are in the right place.”
Though the former DPP emphasises that these discussions augmented the traditional consultation process, rather than replacing it, he’s enthusiastic about their potential. The information they provided resulted in a better policy, he says, and the process built support for the guidelines: “People have much more confidence in what you do if they feel they’ve had the opportunity to contribute and be listened to,” he comments.
Whilst this kind of open policymaking revolutionises the way the CPS interacts with interest groups, Starmer is equally proud of a policy that, he says, “redefines the relationship between the prosecution and the victim, in a really fundamental way.” The ‘victim’s right to review’, he explains, means that whenever the CPS decides to drop a case, the crime victim can ask for a review and explanation. “There’s no need for them to say why they want it reconsidered: they don’t have to identify a defect or error in anything we’ve done,” he says. “They simply are entitled to say: ‘I would like that reconsidered’.”
A few months after the policy’s launch, the volume of requests is “perfectly manageable”, and it’s clear that “the process of explanation has helped victims, even if in their case the decision has not been changed.” It should also, of course, help identify prosecution errors. And there are three longer-term implications.
First, Starmer suggests, it will keep CPS staff focused on high-quality decision-making even as resources dwindle: “I think you approach the decision differently if you think this could be reviewed if somebody asks”. Second, it should improve the way in which decisions are explained to victims, as CPS staff will be keen to avoid unnecessary requests for review. And third, it will create a more grown-up approach to challenge among lawyers: “Sometimes there’s a fear that if anybody looks at a decision you’ve made and alters it, then that’s a terrible reflection on the individual who made the decision,” he says. “It’s not. We all know that decisions are changed for the better, and we just need to be professional and grown-up about that. This happens in real life across all professional bodies, and we ought to learn from that and move on.”
Whatever Starmer thinks of the CPS’s budget cuts and the Ministry of Justice’s legal aid reforms, he’s found plenty to cheer in the drive to make public bodies more transparent, open and accountable. Open policymaking, he believes, is revolutionising the way the CPS interacts with key groups such as judges, lawyers and victim support charities. The victim’s right to review fundamentally changes the CPS’s relationship with those who’ve suffered from a crime. And the digital agenda and the shared need for process efficiency are pushing the CPS into a much stronger partnership with its colleagues across government.
Meanwhile, though, Starmer has enacted all the easy wins in terms of budget cuts and efficiency reforms. So if – as seems likely – a future government requires a new set of cuts after 2016, there will be a need to “look broadly at what the overall framework is, and the wider question of what our criminal justice system should concentrate on.” In other words, ministers will have to decide what they want the CPS to stop doing; the alternative, presumably, is to risk a decline in the quality of the CPS’s work. And then, perhaps Starmer will be quite glad to have passed his responsibilities on to the new DPP; for at that point, the view from his office will be rather less sunny.
Ross, Matt. (20 November 2013). Interview: Keir Starmer. Civil Service World. Retrieved from: http://www.civilserviceworld.com/interview-keir-starmer