Paul Chambers has been cleared by the High Court. No surprises there really – can you think of anyone who thinks (or at least has gone public to say they think) he should have been prosecuted? Even afterwards there is the additional twist of what the DPP did or didn’t think or do about it (in brief, it seems that the CPS indicated that they were going to drop the case before changing their mind – the CPS denied this in what looks like a pretty hurried press release).
We don’t know exactly how much all this cost. But, a magistrates’ court trial, full appeal in the Crown Court, before two hearings in the Divisional Court (complete with silk and junior) don’t come cheap. It probably cost (prosecution, defence and court) well over £100,000 (the CPS said that they spent £18,000 on it, although whether that’s the full bill is unclear).
The question for most people is ‘why was it prosecuted?’ The tweet was clearly a joke. Everyone involved knew it wasn’t a serious or credible threat. To bring such a case before the court would require a complete absence of common sense or sense of humour. Enter the CPS. And this happened on a case that, whilst not serious in the scheme of criminal cases, was incredibly high profile. Imagine how much worse it is in the vast majority of cases.
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. Go into any court and see how many times cases are delayed, or dropped or resolved at the last moment because the CPS haven’t done their job properly (the current rate of compliance by the CPS with Court orders is an appalling 23%).
The CPS has many highly qualified and dedicated staff and 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. In theory they respond quickly and 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. You couldn’t come up with a more inefficient system if you tried.
Politically, I’m against privatisation, but, if we’re going to be privatising the NHS, the police and now the roads, then why not? No organisation with a sense of financial responsibility would have prosecuted this.
Imagine that the CPS was privatised. 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. If a case goes to trial and has to be dropped due to a lack of evidence, a cock up, or a proper review, then there would be a person (in-house or barrister) with whom the buck stopped.
Judges 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 point. If however a judge thought that a costs order would penalise a private company being paid by public money, then we would see a lot more of them. If the result of a breach of a court order, or a silly decision, was felt in the wallet, then we may find things improving. Ultimately, we’ve had years of different initiatives and none of them have worked. Maybe it’s time to think the unthinkable?
And nobody beyond his circle of followers would have ever heard of Paul Chambers and his tweet.
Of course, this is tongue in cheek – there are clearly many principled objections to it. 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. So. It’s crazy, but all the best ideas are? Having said that, clearly I’m not in favour of a full blown privatisation. But surely it must be possible to introduce some kind of financial responsibility? I hear G4S are looking for some new business…
Dan is a barrister at 2 Dr Johnson's Buildings practicing mainly in criminal and immigration law. You can follow him on Twitter (@danbunting)