Firstly, confession time. I’m a bit of a good [
old fashioned leftie] social democrat type. Instinctively, I don’t actually think it’s a good idea. In fact, it’s clearly an insane idea. But, if we’re going to be privatising the NHS, the police and now the roads, then why not?
That ‘the CPS is falling apart’ is received wisdom. It is fair to say that most of the delays and waste in the criminal justice system are the fault of the CPS. Most defence lawyers would happily go on the record to say that. Privately, most police officers and many prosecutors would agree. And whilst I accept that evidence is not the plural of anecdote, here, the circumstantial evidence is as strong as a trout in the milk.
The CPS have many highly qualified and dedicated staff, but the main problem is a lack of resources. But it’s not helped by the current method of working – the vast majority of cases have a ‘pod system’. The idea is that no one individual has responsibility for a case; anyone is free to make decisions on it. The theory is “to enable more people to have ownership of cases so that they are dealt with more efficiently”. In practice, the lack of any accountability is a disaster. When no-one is responsible for a case, inevitably things don’t get done.
Imagine that the CPS was privatised (with a version of graduated fees for each case). There would be pressure to ensure that decisions on cases were made properly and quickly. A system where 90% of cases existed in a ‘POD hinterland’ would not be tolerated. The time would have to be found to review cases properly and promptly and see whether there is actually the evidence there, or the public interest really is met, or whether the plea being offered is actually a sensible one. The idea of ‘run it and see’ or ‘run it and hope’ would not be allowed.
There would be individual accountability. When a case goes to trial and has to be dropped due to a lack of evidence, a cock up, or a proper review, then that would cost money as it does now. If however there was a person (in-house or barrister) with whom the buck stopped, then these sort of things would happen less. There may have been a POD case where the CPS complies with the directions and answers letters on time (or at all), but I’ve never seen one. You hear rumours of it happening, but like the Loch Ness Monster, these are probably mythical.
Crown Court Judge’s rarely make costs orders. There are various reasons for that, some good, some bad. But of course, a costs order against the CPS is effectively shifting public money around different budgets, so there’s little will to do that. If however the Judges thought that a costs order would penalise a private company being paid by public money, then it may be we would see a lot more of them. This would only help and it would certainly lead to more than the current rate of compliance by the CPS with Court orders – an appalling 23%. If the result of a late response to a defence statement, or an out of time bad character application, was felt in the pay packet or the accounts, then we may find that this sort of inaction suddenly decreased.
There are many principled objections, primarily that prosecuting is something that should be done by the state and not for private gain. Also, there would clearly be a fear that decisions would be made on costs grounds alone (although for freelance advocates who prosecute for the CPS, the same arguments apply, and I’m not aware of any real problems).
So. It is a crazy idea, but all the best ones are? Ultimately, we’ve tried other things and they haven’t worked. Maybe it’s time to think the unthinkable? And if someone from the MoJ wants to employ me as a management consultant to do some report on this (or even introducing reforms to the CPS) then great. I’m in. I’ll certainly earn more than I would tomorrow – another mention chasing up the CPS’ non disclosure…