Here’s a novel idea - let’s have a prosecutor leading the CPS

17 April 2013

Writing in the Standard this week, Dominic Raab MP called for the Director of Public Prosecutions to be replaced with a criminal prosecutor when his term expires.

It is astonishing that such a suggestion needs to be made.  Most people would think it entirely obvious that the head of the Crown Prosecution Service, which is responsible for all prosecutions other than a tiny percentage of specialist cases, should have a deep understanding and practical experience of the work that he or she leads.

In fact, the history of appointments to the post of Director of Public Prosecutions, since the CPS was set up in 1986, is full of surprises. In particular:

  • The last two Directors’ have had no significant prosecution background at all before their appointment.  Ken Macdonald’s criminal litigation practice was as a defence lawyer.  Keir Starmer, the current Director, also practised as a defence lawyer, though in recent years had concentrated on human rights and appeal court work.
  • All Directors since 1987, the year after the CPS was set up, have been drawn from barristers in private practice.  The emphasis of their previous work was therefore on the presentation of cases in court.  This contrasts with the core of CPS work: decision-making on which cases to prosecute, and subsequent pre-trial preparation.
  • None of them had any experience of working within the public sector.
  • None of them had any serious experience of management.

The rationale for appointing members of the Bar to the post has been mixed.  Often the appointments board and the Attorney General of the day has thought that the internal candidates were insufficiently able. Another factor in play has been that the judges, one of whom usually sits on the appointments board, would feel reassured if a member of the Bar were to be appointed.  The suggestion is that members of the Bar offer an extra measure of independence and objectivity, and of course candidates are usually very well-known to the judges.

None of these reasons ever bore detailed examination, or countered the serious objections to appointing barristers from private practice to such a substantial executive role.  There is an easy arrogance to the assumption that a member of the Bar can slot easily into any job involving criminal litigation, an assumption which is made readily by people involved in the appointment process who come from a similar background.

Whatever may have been the position historically, there are now a number of people holding senior positions within the CPS who are well placed to take the top job, both in terms of their ability and their profile. It is nonsense and insulting to suppose that they are any less independent than members of the Bar. Each of them has carried significant executive responsibility already as a Chief Crown Prosecutor. They know the job and have the confidence of their colleagues. 

Keir Starmer’s term of office expires in November and the trawl for his successor will begin soon. This time, the Government needs to ensure that there is a securer basis for the appointment. The emphasis should be on extensive, practical experience as a prosecutor, a significant management background, and a deep understanding of the public sector ethos. With those factors in play, the individuals who make up the senior levels of the CPS will have a fighting chance.

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