The learning curve: DPP Max Hill QC

Learning from its mistakes, disclosure is now ‘front and centre’ at the CPS and case file quality paramount, says the new DPP. Four months in, he has clear goals for the service while boosting internal morale and public trust


Max Hill QC comes to the job of Director of Public Prosecutions laden with glittering prizes from the Bar: a substantial practice both prosecuting and defending, Chair of the Criminal Bar Association, Leader of the South Eastern Circuit, head of a thriving set of chambers, and latterly the outspoken Independent Reviewer of Terrorist Legislation. But when I meet with him, he is at pains to emphasise that he is on ‘a real learning curve’. In December 2018 he told the Justice Select Committee that he has found the Crown Prosecution Service to be a place of ‘cheerfulness, enthusiasm and dedication’ and he wants everyone to realise ‘what a successful place it is’. At the same time he has his own clear goals of what he believes the CPS can achieve.

An average day

I begin by asking what he does all day. Unsurprisingly, ‘every day is different’. This one started with his 71st daily staff call. ‘I immediately needed to grapple with how to deal with 6,000 staff’ – the vast majority of whom did not know him. So ‘I have asked my team to keep a list of people who are prepared to receive a [15-minute] telephone call from me.’ This morning it was a fees clerk in Merseyside. On other days it could be a paralegal assistant or a senior crown prosecutor or an administrator. Everyone has been ‘forthright’ and in return he has found that eight times out of ten he has been able to take some action arising out of what they told him: ‘I have learned enormous amounts.’ He is also getting to all the area offices.


Attention to detail: Independent Reviewer of Terrorism 2017-18, Max read the entire Koran and noted the ‘complete absence of hostile messages’.


After speaking to the fees clerk he recorded to camera ‘for our Respect programme. We are very forward looking in relation, not just to well being for our staff’ but also bullying, zero tolerance, ‘all those aspects’. Max is aware of the statistics in successive Barristers’ Working Lives surveys of how many employed women barristers specialising in crime report observing or being the victim of recent harassment and discrimination. After our meeting he was due to meet with the Mayor, later in the day the Modern Slavery Act reviewers (two MPs and Lady Butler-Sloss) and later still the Metropolitan Police Commissioner. He also has to review the CPS’s search for a new CEO. ‘That’s an average day.’

What he is not doing is taking case decisions unless that is mandated by statute or ‘strong convention’. He is trying ‘to perform a proper role in helping with the legal work of the CPS. The way I do that is not taking individual case decisions but by understanding those decisions, supporting them and perhaps doing something to further energise and give confidence to the legal leaders in the organisation’. ‘There is a well worked triage system. No individual lawyer is ever on their own.’

The Bar and the CPS

Max is ‘very keen to keep the status quo balance between internal advocacy and external use of the Bar’. There are 2,900 self-employed barristers on the CPS panels and they should realise that they ‘have a real positive future in terms of their engagement and work streams’. The crown advocates’ scheme will not be expanded ‘but where we do have crown advocates they are employees just like anyone else. They are entitled to career progression and career enhancement in the cases they take on.’ The more experienced CPS advocates in turn help the less experienced and ‘radiate back’ what is expected in court.

The duty of disclosure

Inevitably the first substantial matter to discuss was the question of disclosure – the ‘disclosure crisis’ as it has been called. 2018 was the year of well-publicised collapses in rape trials and when the CPS sampled 47 serious sexual offence cases and found a proportion had been halted because evidence had not been properly shared with the defence. Max has described the CPS as an organisation that ‘works hard to put things right’. They have accepted and adopted the review of the Attorney General. Much of that review, however, replicates the improvements already put in place by Max’s predecessor, Alison Saunders CB. Disclosure is now ‘front and centre’; ‘so we are absolutely gripping disclosure in a tight partnership between ourselves and the police, backed by the College of Policing’. The national disclosure improvement plan continues in its various stages.

"If the ‘streamline disclosure certificate’ is not there, the file will be sent back to the police. Similarly if the file is not of adequate quality, the CPS will not charge. And if deficiencies cannot be cured then again the CPS will not charge."

The CPS code makes it clear that the examining of complainants’ mobile devices ‘is not a requirement as a matter of course in every case’. While the police are bound to follow ‘all reasonable lines of enquiry’, the question of examining ‘communication material’ and downloading data from phones is a decision tied to the specific facts of the case. In other words, it is a judgement call by those who prosecute and which potentially puts them in the firing line. Max told me of his meetings with groups who are concerned about the privacy of complainants who do not wish ‘their lives to be turned upside down in every case’. The ‘confidence and trust’ of witnesses is crucial. In support of the CPS attitude Max cited the case of R v E.

R v E [2018] EWCA 2426 (Crim) demonstrates how complex the issue can be. There were two sister/complainants in the prosecution. The police did not seize the phone of one and the CPS did not disclose the download of the other’s. Prosecution counsel obviously thought different, namely, that seizing the phone was a reasonable line of inquiry on the facts and it was a breach of the code not to have done so. That was the crown’s stated position when it turned out that material from the relevant period was no longer available and the defence applied to stay the prosecution. No one in the matter took issue with the CPS code. Indeed the judge who acceded to the application applied it. On appeal the crown’s case turned 180 degrees. New counsel submitted that they had been wrong to make those concessions in the crown court. The Court of Appeal did not allow the change of mind but they did find that the judge had acted unreasonably in not seeing that the defendant in the circumstances could indeed still have a fair trial. The correct test was ‘whether the trial will be fair generally’ despite lost evidence.

Quality throughout

For Max, there is a wider aspect, which is improving case file quality. Disclosure is an important element of that. ‘We are now putting systems in place to gather data on cases as never before... We are saying “always look for disclosure before charge but do more than that, look for overall file quality”.’ He was reminded of this when, unlike his predecessors, he spent a day prosecuting a list in the magistrates’ court. He asked to be treated like a novice which meant he was supervised by a senior crown prosecutor. Cases, he feels, must be ready on the first appearance so that everything that needs to be done (eg applications for special measures) can be done and a trial date fixed.

All this means enforcing a high standard before charging suspects. If the ‘streamline disclosure certificate’ is not there, the file will be sent back to the police. Similarly if the file is not of adequate quality, the CPS will not charge. And if deficiencies cannot be cured then again the CPS will not charge. ‘We are not risk adverse,’ he emphasises, ‘we apply one test in the code, 100% of those who meet the test are charged.’ And all this despite the fact that since 2010 the CPS has lost 30% of its staff and 30% of its budget.

Training

I asked about what could be called the ‘Rashid test’. Two years ago, in R v Rashid [2017] EWCA (Crim) 2 the then Lord Chief Justice declared that in respect of cases involving vulnerable witnesses or defendants, the court must take into account the fact that the advocate ‘will have undergone specific training’ and can fulfil the ‘essential requirements of advocacy’. If they lack it, the remedy is to inform those instructing them.

So has everyone sent into court by the CPS fulfilled the Rashid test including taking the Inns of Court College of Advocacy (ICCA) vulnerable witness course? All crown advocates we are told have completed it. There is an individual quality assurance for each CPS advocate to make sure they ‘make the mark’ and are up to date with The Advocate’s Gateway. As for the panel barristers, the CPS does not monitor whether they have taken the ICCA course, but Max is confident that the panel barristers are proficient at whatever level they operate under.

How does one measure how well the CPS is doing? Max includes diversity and inclusion as part of their successes. ‘A huge amount of work is done and pressure is on to drive that [case load] process more and more efficiently, case management, working with support of judiciary to get cases through the system, all of those are [also] successes. But not headline news.’ ‘Looking at volumes of cases, the way in which we charge cases under the new charging standards where area lawyers are looking that file quality is more robust. In some respects we will be able to look over at the percentage of cases which come over from police which are complete and ready to charge.’ ‘I am a great proponent of quality over quantity.’ But it’s one step at a time.

Law and society

Throughout his career Max has been conscious of the law’s connection to society at large. He cites his involvement in the Damilola Taylor trials (2006) as one of the seminal cases in his career. ‘The ferocity and callousness with which a 10-year-old boy was killed on the streets of London I don’t think anyone can forget... You would be inhuman if you didn’t reflect on the sheer quantity of cases [currently] going through courts where young people harm or kill others.’ He has tried to help young people through being chairman and now patron of Scene and Heard, a charity that helps disadvantaged children through drama. For five years he was chairman of the Kalisher Trust which tries through scholarships, advocacy training, outreach and internships to encourage, at every stage of their education, those without the means to come to the Bar. When he was the Independent Reviewer he read the entire Koran and noted the ‘complete absence of hostile messages’ which terrorist propaganda claimed were there.

He showed me his latest reading: Sarah Jane Blakemore’s Inventing Ourselves. ‘There are books which give you an insight as to how we develop as people,’ he says. It is no surprise that he adds, ‘There is always a human story behind a charging decision.’


A DPP’s progress: the first chief prosecutor to use Twitter, Max has said ‘social media is part of the way that we talk to each other in this country now’. @MaxHillQC


About the interviewer: David Wurtzel practised at the criminal Bar for 27 years and is an honorary door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.

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David Wurtzel

David practised at the criminal Bar for 27 years and is a door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.