He has been an outspoken and robust holder of the post. So Sir Ken Macdonald,
QC, was unlikely to end with a whimper. True to form, his final speech just
days ago was a forceful attack on ministers’ plans for a new super database
and the dangers of expanding state surveillance and growth of the security
State.
Sir Ken, who heads the Crown Prosecution Service (CPS), cautioned against the
“enormous powers of access to information” given to the State by technology.
“We need,” he said, “to take very great care not to fall into a way of life
in which freedom’s back is broken by the relentless pressure of a security
State.”
It was vintage stuff: the Director of Public Prosecutions went on to describe
his five years as “a relentless prosecutorial struggle against terrorism”
but insisted that people’s rights remained “priceless”: the fight would be
grounded, he said, in respect for due process and “our liberal
constitution”.
This mix — the ardent prosecutor who refuses to abrogate key legal safeguards
in pursuit of criminals — has given his tenure a particular strength. The
press had a field day, he recalls, when he was appointed to the job, partly
because of a conviction as a student for sending cannabis through the post
but chiefly because he was renowned as a barrister who had “defended
terrorists of almost every hue”.
In fighting terrorists, the DPP insists that “we have been absolutely right to
resist . . . special courts, vetted judges and all the other paraphernalia
of paranoia”.
Sir Ken is careful to keep his distance from party politics. But he applauds a
“change of tone” in recent months. “I think that our Government is
completely behind this . . . and is absolutely committed to dealing with all
these cases in the conventional way”.
Nor, he adds, despite the importance of victims, will it ever be possible “for
their interests to overcome those of defendants”.
Sir Ken was arguably instrumental in the defeat of government plans for a
42-day detention of terror suspects — but he is not one of the liberal
lawyers who can be accused of being soft on terror. “In terms of our serious
work, we are now world-class. We have the best counter-terrorism prosecutors
in the world. Our conviction rate [in counter terrorism] is more than 90 per
cent; in organised crime it is close to 95 per cent.” Prosecutors from
across the world come to learn from the CPS, he boasts.
What is his record? The past five years have been key for the CPS — in its
changing role; its improved reputation; and its move, as he puts it, out of
the shadows to centre stage. The crux lies in improved public confidence — a
strategy pursued through putting his and the CPS’s head above the parapet.
“As important as the casework is, being more public . . . talking to media
organisations, having a view and expressing it, having a public voice, has
done an enormous amount for our stature and for the self-esteem of people
here and that’s a reason people want to join.”
His appointment was a risk. He received a phone message suggesting that he
might apply. “I thought it was a joke,” he recalls. The decision, approved
by Lord Goldsmith, QC, then the Attorney-General, was a brave one; Sir Ken
was the first defence counsel appointed to the job.
The Attorney may have come to regret the robustness of his DPP. They privately
disagreed over Lord Goldsmith’s role in the cash-for-honours affair and the
Attorney’s role is now to be changed, so he or she can “direct” prosecution
policy only in cases involving national security. Sir Ken is content with
the plan: he does not believe such a power to direct a prosecution (that is,
against a DPP’s wishes) would ever, in practice, be used. “I don’t think it
would come to it.”
This independence from ministers — the Attorney in particular — has been a
hallmark of Sir Ken’s tenure. Some past DPPs have stuck to the view that
they are civil servants who must not have a public voice.
Sir Ken says: “Independence is absolutely critical to public trust in
prosecutors. The public want prosecutors to be independent of the
prosecutorial process and prosecutors to be attached to due process . . .
and I think it important for a DPP to stand up for the rule of law.”
Baroness Scotland of Asthal and he see eye to eye on the “rule of law”, he
adds.
He declines to discuss relations with Goldsmith or whether he would have
resigned had the latter sought to overrule him. Some conversations had been
“robust”. He says: “In the end, I had to be comfortable with the decision
because I was the one making it and had to live with it.”
On the CPS itself, there have been two big changes: the taking over of
charging suspects from police and the drive for CPS lawyers to do more
advocacy in the courts. Both have changed the service into “an employer of
choice” rather than a laughing stock — people are “queueing up to join us”,
Sir Ken says, because they can have a “fully rounded career”.
Having CPS lawyers as the gatekeepers of the courts has improved standards of
cases brought to trial: in the past five years, discontinued cases have
dropped from 37 to 13 per cent and guilty pleas risen by 30 per cent. If
Conservative proposals to give some charging decisions back to police are
pursued, the results will “not be pretty”, and it will be back to the days
of weak cases in court with potential for wrongful convictions.
The advocacy drive has caused anger among Sir Ken’s old colleagues at the Bar.
The target for this year is 22.5 per cent of routine trials. He is
unrepentant. “I understand this is challenging — every case we do is a case
they’re not doing. But there will always be plenty of work for the Bar. We
can never cover the majority of our work in-house.” As for young barristers
preferring the CPS, he says they can always go to the private Bar at a later
stage or join the CPS from the Bar. “It’s an acceptable model: we are
creating alternative career paths for barristers.”
He also rejects criticisms that CPS advocates are not up to the task: “It’s
not true. No doubt there are strong performers and less strong performers —
as among private practice barristers.” But every inspection of CPS advocacy
had “shown it to be as good”.
Not all in the garden is rosy. The CPS still has problems — chiefly the
“volume work”, that is magistrates’ courts’ cases, especially in London,
“challenging” for all public services, partly because of the huge number of
cases and courts.
Nor, he adds, is the CPS the only player. The CPS prosecutor in court is the
obvious target. “When a case is not ready for trial, that can be for a
multiplicity of reasons. The evidence from police may not be ready or the
courts may switch a case to another prosecutor at the last minute. There’s
no single agency responsible for all the inefficiencies — we all depend on
each other. It’s absolutely wrong to blame the CPS — sometimes it’s our
fault, but often it’s the fault of other agencies.”
Things, he says, are getting better. A reported figure of 7,000 cases
discharged because they were not ready must be put in context out of tens of
thousands of cases a year in England and Wales. “I am not complacent.
There’s a long way to go. But it has improved.”
What now? He will return to Matrix chambers but the work is likely to be
advisory (not court advocacy), including advising companies on their
criminal liabilities. He would also like some lecturing and there are
options not yet finalised.
Sir Ken had fears that the next DPP would be in a different mould with the
risk that the clock would be turned back. He is delighted that with Keir
Starmer, QC, it has not proved to be the case. As for tips, he would advise
on the need for independence. “But he doesn’t need any advice from me.
“At one time, the CPS was a national basket case. People now talk of the CPS
as a credible national institution. That has been my overriding aim.”
