Vera Institute of Justice
Remarks of Christopher E. Stone,
President and Director of the Vera Institute of Justice, New York City,
Thank you very much for the privilege of appearing before you today to discuss the proposed legislation to create a National Prosecuting Authority.
It has been a great honor for me to have worked with Minister of Justice Dullah Omar, with magistrates and prosecutors in the District and Regional Courts, and with members of this committee since last April to create the Bureau of Justice Assistance within the Ministry of Justice. The Bureau's first project, the demonstration of Pretrial Services in several of the busiest courts in South Africa, is already having an impact and producing useful information about bail, witness services, and the pretrial process. I know that on earlier occasions you have heard from Michelle India Baird, the Bureau's director, and Ron Paschke, the Bureau's director of research and technology, about the Pretrial Services Demonstration and their early findings.
But today our subject is prosecution, and I will use this opportunity to describe a series lessons that can usefully be drawn from the last major effort to create a national prosecution service from what previously had been a locally managed system. This was the creation in England and Wales in 1986 of the Crown Prosecution Service. Those of you who follow English criminal justice will know that the establishment of this national prosecution service went terribly wrong and the present government is on the verge of wholly reorganizing the CPS.
At the outset, let me emphasize the difficulty of drawing lessons across national borders. Those of you who recently visited the United States will recognize the dangers, as well as the value, of applying the experience of other countries to your own particular situation. In the case of the National Prosecution Authority, there are important differences between the situation you face today and that which prompted the creation of English Crown Prosecution Service twelve years ago, and there are further differences between the CPS and what is proposed in the draft legislation that you are considering here. But in the story I am about to tell, you will hear similarities as well as differences, and it would be unfortunate not to learn from the painful experience of the English in this regard.
Let me first review the history of the British experience, then draw a few lessons.
1986: The new national CPS was launched on October 1st, following a Home Office white paper, a set of management recommendations from Arthur Andersen & Co., and passage of the Prosecution of Offenses Act 1985. Almost instantly, what had been widely regarded as a sensible constitutional reform became a national lightning rod for criticism. When cases ended in acquittal, when cases were diverted from the courts, when cases were slow to be prepared, everyone could now blame the new national prosecution service, and almost everyone did. Not only did magistrates and police cast blame on the new prosecution arrangements, but so did the line prosecutors themselves. This might seem strange since the individuals actually prosecuting in court had not changed very much, but their annoyance at the imposition on them of this new national structure allowed them to blame the new structure for their own failings.
1987: The DPP published a statement of prosecution policy which the law required to be made public. With criticism of the national office continuing from the local offices, the DPP announced a restructuring of the Service only six months into its life designed to get the national office in better communication with the local chief prosecutors. He introduced a new level of senior management: four regional directors. Nevertheless, low morale in the service remained a news item, blamed on lack of resources and understaffing. Press reports were largely negative, but attributed the problems to "teething troubles," implying that the service would outgrow them as a matter of course. The managers of the service at the time certainly wanted to believe this.
1988: Understaffing preoccupied the service throughout the year. More than a quarter of its legal positions remained unfilled, particularly in London where the civil service pay scales were least competitive with the private sector. Up to this point, recruitment efforts had emphasized the benefits of job security in government employment, but had failed to attract the necessary applicants. Reassignment of staff between areas had provided little relief. Now the national service responded in three ways:
· The national DPP directed that non-legal staff be used to screen minor cases. The lawyers in the service strongly opposed this, but the national director persisted and the lawyers sued him. The High Court ruled against the DPP, the DPP appealed and continued the practice. He eventually dropped the appeal and relented, but not before doing great damage to his internal relations.
· a new recruitment campaign stressing potential for movement into the private sector. Packages included a 40 percent bonus at the end of the third year.
· a large increase in the use of private lawyers contracted to prosecute for the service. The government had always insisted that it would not rely heavily on these private agents, but now the pressure became irresistible, despite the large costs.
In May, almost three years after it was launched, the CPS published a survey of its own staff that was so negative that the National Law Journal wondered, in an editorial, why the CPS had even published it. Seventy-nine percent believed the service had been launched with inadequate planning. Eighty-nine percent said their enthusiasm and good faith had been broken by overwork. Perhaps most ominously, roughly two-thirds thought the worst was yet to come.
By October they were proved right: the Sunday Times printed a story alleging widespread corruption in the national service following the arrest of an administrative officer in London on bribery charges.
1989: To boost recruitment, the DPP won permission to increase pay levels and offer educational subsidies. It worked, but principally by attracting clerks from the magistracy, leading to charges from the magistrates of poaching. Moreover, the new recruitment was accompanied by new departures of staff hired only two or three years earlier, raising questions about the value of the expensive education subsidies. By the end of the year, despite enormous hiring, the service was precisely as understaffed as it had been when it started. Part of the problem here was the growing use of contract lawyers to prosecute. According to a report that year by the National Audit Office, these lawyers earned more than they would as staff prosecutors, and many were leaving precisely to continue prosecuting under contract. These contract lawyers, moreover, often proved vocal critics of the national service, even while taking its money, publicly criticizing the quality of work done in house.
But there was worse news in the audit report. The rate at which prosecutors were discontinuing and diverting cases varied widely across the country (from 2.4 to 13.4 percent), and the rate at which judges were discharging the accused because of insufficient evidence was increasing under the national service, instead of decreasing as had been intended. Progress toward the goal of national uniformity, which some had used to justify the creation of the national service in the first place, seemed to be getting nowhere.
At the end of the year, the DPP announced the second restructuring of the national service. The DPP eliminated the regional director level in the national office for the same reason that his predecessor had created it two years earlier: to improve communication with the local offices.
1990: This was the year in which tensions between the police and the prosecutors erupted into public view. The Home Affairs Committee of the House of Commons held hearings on the service at the which the CPS blamed its problems in court on the police, and the police reciprocated in kind, blaming the CPS for losing and dropping its cases, permitting crime to rise. The police accused the prosecution of being overly concerned with perfectly prepared files and lacking a stiff fighting spirit against crime. The Magistrates and Justices Clerks blamed the police for their lack of commitment to the prosecution process, but put most of the blame on the prosecution service for the growing delays and failures of justice.
The Home Affairs Committee used its report to plead for an end to the squabbling between police and prosecutors, urging that prosecutors consult with the police during investigations and throughout the prosecution. The government responded, however, by announcing that it would create an Inspectorate to review the quality of prosecution decisions.
1991: Staffing levels began to improve, so that only about 13 percent of posts were vacant, and the CPS could therefore cut back on the use of contact lawyers. But whatever good news there was in that was overwhelmed by scandal when the DPP was arrested for "kerb crawling" in the King's Cross area of London. He resigned.
1992: A new national DPP, Barbara Mills, announced a third major reorganization of the service: consolidating the regional offices into 13, again to ensure more direct relationship between the national DPP and the daily work in the field. Meanwhile the Royal Commission on Criminal Procedure made its report, urging the CPS to take a greater role in pretrial investigations with the police.
1993: The crime rate in England rose and the national prosecution service was one of the favorite targets for public blame. Failures in prosecution were widely publicized and the national DPP's explanation that the cases brought to the service were too weak itself seemed weak. The national prosecution service had achieved a reputation as the weakest link in the criminal justice system. Inside the CPS, the third reorganization was proving enormously unpopular. A staggering 96 percent of prosecutors reported having "no confidence" in their senior management.
In the three years since, the CPS has finally begun to pull itself together, but it may be too late. In 1994, they issued a new set of prosecution guidelines, this time in simple language that the public could grasp. In 1996, the prosecutors began to work alongside police in police stations. But these good moves could not stop the avalanche of criticism as England moved into national elections. There were calls from inside the government to privatize the prosecution service, the opposition Labor Party argued for total overhaul, and staff dissatisfaction remained intolerably high. In 1997, the Labor government called for the fourth major reorganization of the service: breaking it up into 42 management areas. Those plans are now on hold as a new commission is about to make its own recommendations to the government on the future of the CPS.
What, then, are the lessons to be drawn from this history?
First, one should not underestimate the vulnerability of a national service and a national DPP to criticism: not just about inefficiency and incompetence, but about crime itself. In Britain, local prosecutors had not been a target for this level of criticism before, and so the new national service did not anticipate it. In South Africa, the Attorneys General and the Minister may already experience some criticism, but the national DPP proposed in the Bill may receive a lot more. The lesson here is not to try to avoid the national spotlight, but rather to anticipate and shape a public role as a leading player in the fight against crime. It took 10 years for the CPS to write its public prosecution policy with an eye to the public rather than as a document for lawyers. It took 12 years for the CPS to start working systematically with the police to strengthen cases, rather than simply present them or dismiss them. The national DPP here in South Africa might consider using these tools from the start to provide an affirmative vision for the country of how the prosecution function can reduce crime and advance justice.
Second, the national prosecutor should consider shaping a service based on excellence, not tenure. The English imagined that they could build a new career for public prosecutors within the traditional civil service system, using job security as the principal attraction. But the legal profession itself was changing all around them with the erosion of the distinction between solicitors and barristers and the rising salaries of commercial firms of attorneys. The English realized too late that civil service tenure would not attract the best lawyers nor would it hold them in the service, and the resort to contract lawyers damaged the finances, the reputation, and the esprit de corps of the young national service.
Just as the national DPP might articulate a vision of the prosecution's role in fighting crime for the country, the DPP might articulate a vision of the service itself as part of a legal career for its members. The national DPP should want to attract the best young lawyers as prosecutors, but no prosecution service in the world can compete with the salaries offered in the private sector. The solution might be to make three or four years in the prosecutors office into a first-class foundation to more lucrative forms of practice; but, whatever the solution, the DPP should consider stating it clearly and organizing budgets, recruitment, training, and deployment accordingly.
In sum, the overarching lesson to be drawn from the English experience is that placing a national official in charge of an existing, decentralized service does not just create a new role at the top for a policy maker or a prosecutor of national cases. The installation of a national DPP is likely to change everything about the service, and both the candidate and the Act should anticipate this.
Thank you for your attention.