Strapped for cash and in the public eye, the DPP and Treasury Solicitor have the toughest legal jobs in the civil service. Grania Langdon-Down spoke to Alison Saunders and Jonathan Jones about how they manage
When chancellor George Osborne stands up in the Commons this Wednesday to announce the results of the government’s 2015 spending review, the Crown Prosecution Service will learn if it is to face cuts at a time when it is pleading for more money, not less, to cope with the changing nature of the crimes it is prosecuting.
The chancellor will also be watched closely by the Government Legal Department as its client ministries will be looking to cut costs at every turn to meet their budget reductions.
As two of the biggest legal employers – they account for more than 4,300 solicitors and barristers between them – the consequences could be profound. Speaking to the Gazette, director of public prosecutions Alison Saunders and Treasury solicitor Jonathan Jones reflected on the challenges ahead.
First, to Southwark Bridge and the headquarters of the CPS. It has been an unrelentingly tough two years for Saunders, who took over as DPP in November 2013. The first ‘home-grown’ director, she joined the service shortly after it was established nearly 30 years ago.
The news is full of dire headlines about the ‘beleaguered’ service being on the ‘brink of collapse’. These have been accompanied by calls for the director’s head after a series of high-profile cases, including the Operation Elveden journalist prosecutions, 28 of which failed, and her decision not to prosecute Lord Janner.
While she did not anticipate the uproar, Saunders is phlegmatic: ‘Even though you tend to think it is only ever you going through this, most DPPs have gone through it.’
And she looks for the positives. ‘Thirty years ago we wouldn’t have dreamt of explaining our decisions or giving reasons,’ she says. ‘We can’t respond all the time to criticism or commentary or we would be accused, quite rightly, of flip-flopping around. So we stick to the code and apply our decisions consistently and independently of pressure from the media or politicians. That way we can stand up and explain them.’
She also points out that, if a jury decides a defendant is not guilty, ‘it is not a crisis for the CPS nor does it mean it is a “basket case” – it is the criminal justice system working as it should. If we only brought cases where we were 99% sure of a conviction, we would be accused of being risk-averse and criticised for not bringing them.’
‘You are damned if you do and damned if you don’t,’ agrees Nazir Afzal, the former north-west chief Crown prosecutor. The first Muslim to hold such a senior post, his resignation earlier this year after nearly 25 years at the CPS was seen as a blow to the service.
‘When the jury was out in the trial of former BBC presenter Stuart Hall, a journalist told me he had two stories written – one castigating Hall for what he had done and the second castigating me for bringing the case.’
However Afzal, who was one of three internal candidates competing for the DPP position, says Saunders is ‘very resilient’ and will cope with the criticism. ‘Alison’s appointment was very positive,’ he says. ‘Any mature organisation wants people from within to have developed sufficiently to run it, because it gives other people hope that one day they too can be a senior manager.’
The latest spending review comes at a deeply troubled time for the criminal justice system, with the defence community up in arms over court charges and legal aid franchise awards.
The CPS, which makes 6,000 charging decisions every week, and last year prosecuted 664,000 defendants, is undoubtedly under huge pressure after budget cuts of 25% over the last four years and more than 700 job losses over the last two.
But for Saunders, the CPS’s record of maintaining an 80% conviction rate over the last few years despite all the cuts demonstrates the organisation’s resilience.
While that was a ‘commendable achievement’, according to HM Chief Inspector of the CPS’s last annual report, he also warned that outcomes were starting to deteriorate.
And the pressures will only increase. While the overall number of cases the CPS prosecutes is down from 738,064 in 2013-14, there has been an exceptional and unexpected growth in serious and complex cases involving rape, child sex abuse, domestic violence, cybercrime, fraud and terrorism.
So how fearful is Saunders of the spending review? ‘We are not a ring-fenced department; the government has already made that clear,’ she says. ‘I am on record as saying that, because of the unexpected increase in these cases, we need more funds to deal with them.’
So far, she says, the service has been able to protect, ‘as far as we can’, the operational side by focusing economies on its estate, finance and HR teams. A digitisation programme has also saved money.
Afzal estimates that he delivered 30% of savings during his four years as north-west CCP by closing offices, getting more work done remotely and reducing the headcount by 130.
He left to work on new projects but admits the pressures on his staff took their toll. ‘It was painful as a senior manager to read some of the internal comments about how affected staff were by their workloads,’ he says. ‘They all want to do the best job they can but that shouldn’t mean working weekends, and not taking leave, particularly as some cases can be very traumatising.’
4,300: Number of solicitors and barristers working for the GLD and CPS
50%: Percentage of senior GLD lawyers who are women
62,000: Cases handled by the GLD litigation department last year
42%: Percentage of CPS staff who think their workload is acceptable
664,000: Defendants prosecuted by the CPS last year
Saunders acknowledges that staff are under pressure but counters that the service still has experienced lawyers as well as many ‘really good, bright young prosecutors’. It has also recruited 111 trainees since 2012, after a two-year gap, while the workforce is an ‘exemplar’ of diversity and ethnicity.
What is clear is that the CPS’s role has grown enormously since its inception in 1986 and Saunders has seen it from pretty much every angle. She spent her early career prosecuting at CPS London South, but over the years has been an area CCP, worked in the policy directorate twice, set up and headed the organised crime division, and worked in the HM Crown Prosecution Service Inspectorate and the Attorney General’s Office.
She says the way the service deals with violence against women and girls is an illustration of how it has developed. There are now Rape and Serious Sexual Offences teams in every CPS area. ‘We are also piloting a project to embed prosecutors in four police units so they can advise how the investigation should progress from the start,’ she continues.
Still, critics say it can take six months from files being submitted to charging advice.
Saunders admits the service was caught out by the jump in cases and requests for early advice. ‘When files came to us, they weren’t ready; a review found 50% had to go back for more work,’ she says. ‘We also didn’t have enough prosecutors in the teams. But we are increasing the numbers because this “ping pong” of files just causes delay.’
Looking ahead, the focus is on digital working. Courts are becoming fully digitised through the Digital Case System (DCS). This is a secure web-based software solution which allows prosecution, defence, judge and probation to upload, access, annotate and present cases in court.
Pilots at Leeds and Southwark Crown courts started in July for preliminary, plea and case management, and committal for sentence hearings and trials. Saunders says predominantly positive feedback means the DCS has been approved for national rollout alongside the Crown court Better Case Management programme.
The DPP says the CPS is also running some ‘really good pilots with firms like Tuckers where we are sending them all of the prosecution papers early’.
Adam Makepeace, Tuckers’ practice manager, says his firm is 100% supportive of digital working. ‘If I have one frustration,’ he says, ‘it is that we were told the digital revolution was coming so we planned for it, but it hasn’t come quickly enough.’
With so much change amid such tight budgets, it is perhaps unsurprising that the last CPS people survey found less than a third of respondents would recommend it as a ‘great’ place to work. While 81% said they felt trusted to carry out their job effectively and had the right skills, only a third felt they were paid adequately and only 42% thought their workload was acceptable. More than half said change was not well managed.
‘I make a point of getting round our offices frequently – probably too frequently for some,’ Saunders says, ‘and I don’t think that is a generally held view. People want to do as good a job as they can and some may feel frustrated if they feel they can’t. But they are not leaving in massive droves and we aren’t being drained of experience or ability.
‘We have lots of fantastic lawyers delivering really good results, including around new legislation, such as revenge porn cases, and in terrorism and fraud.’
There will be changes at the top over the coming months. Chief operating officer Jim Brisbane is assuming a new role in semi-retirement from December, making sure initiatives are properly embedded and consistent around the country. Chief executive Peter Lewis is retiring in March after eight years in the role and 30 years with the CPS.
‘It is the right time, as it is half way through my term of office and you wouldn’t want both the chief executive and the DPP going at the same time,’ she says. The last three DPPs have done their five-year stretch and then moved on. Saunders concludes: ‘There is an option to extend, but five years might be enough.’
Onwards, then, to Kemble Street, Holborn. After four years of major structural change, the creation of the Government Legal Department (GLD) is complete – for now. Treasury solicitor Jonathan Jones took over as the government’s chief legal officer in 2014 in the midst of some of the biggest of the departmental mergers.
Bringing together most of the government’s legal teams into one unified service was ‘never about a power grab’, he stresses. ‘It’s been consensual rather than a hostile takeover and is about building a collegiate department that works well together, rather than bolting on unwilling teams.’
The Government Legal Service (GLS) as a whole accounts for nearly 2,000 lawyers. The GLD, which replaces the Treasury Solicitor’s Department, has around 1,300 lawyers. The departments yet to join the GLD include the Department of Energy & Climate Change, Foreign & Commonwealth Office, HMRC and the Department for Business, Innovation & Skills. They have kept their own legal teams to do their core advisory work, with the GLD doing their litigation and most of their employment and commercial work. There are also legal teams based with public and regulatory bodies.
While the GLD advisory teams continue to be located within their departments, the new structure should eliminate duplication over issues that span the whole of government such as Europe, human rights, freedom of information and data protection. The department also has to be flexible enough to absorb urgent, unplanned work, such as supporting the government’s response to the Ebola epidemic.
The key will be to create a one-team, one-culture model. The structural changes were under way during the 2014 People Survey. While 92% of respondents said they felt trusted to carry out their job effectively, only 39% felt changes were well managed and that it was safe to challenge them. Just under a third felt the changes were for the better, while 41% felt a strong attachment to the department.
The 2015 People Survey is under way, so Jones will be able to gauge people’s engagement with the new department. ‘It will be a genuinely interesting test to see how people are feeling,’ he says. It is a challenge, for instance, to ask MoD lawyers who have only been part of the GLD for a few months how they view their level of engagement.
‘But we are working very hard on this,’ Jones notes. ‘We do the best, most interesting and challenging legal work that you will find anywhere. There are seismic issues ahead with the EU referendum, human rights reform, more devolution, the debate on English votes – and government lawyers will be working on all of them. By bringing the lawyers together in a professional organisation with a good profile, we hope they will feel they have a stake in it.’
An added bonus should be better career paths, he says. It has always been possible to move department, as Jones’s CV demonstrates. Called to the bar in 1985, he took up his first government post with the Office of Fair Trading in 1989. Since then he has been legal adviser to the Department of Education; director general of the Attorney General’s office; deputy Treasury solicitor; and the Home Office’s chief legal adviser. His current role includes being legal adviser to the Cabinet Office and Number 10.
‘While we can never guarantee that someone will get the job of their choice when they want it,’ he says, ‘overwhelmingly we will give people the opportunity to move to suit their career needs.’
One of the main gripes of the survey was over pay, with around 60% saying they did not feel their pay adequately reflected their job or was reasonable when compared with lawyers doing similar jobs in other organisations.
Cracking up – ineffective trials
Responsibility for ‘ineffective trials’, which don’t go ahead on the trial date because of administrative issues or problems with the prosecution or defence, and ‘cracked’ trials, where the defence offers a last-minute plea or the prosecution offers no evidence, is a contentious issue. Justice secretary Michael Gove (pictured) said in June that, across both magistrates’ and Crown courts, almost one in five trials – 17% – are ‘ineffective’, while almost two in five trials – 37% – are ‘cracked’. That leaves fewer than half of cases– 46%– which are ‘effective’. ‘We must do better,’ he stressed.
It is clearly a waste of resources if trials are postponed or cancelled at the last moment, DPP Alison Saunders says. But she maintains the prosecution reasons for this happening have been decreasing. This can also be caused by victims or witnesses not turning up. But, she notes, the most common reason for cracked trials is defence pleas which have not been offered before.
That raises questions over whether defendants are being charged correctly. A joint police and CPS Inspectorate report in May said the quality of charging decisions needed to improve. Saunders says prosecutors are working with the police on the ‘most effective and efficient way’ of delivering charging advice through CPS Direct. Initiatives such as the early plea scheme, Transforming Summary Justice in the magistrates’ courts and Better Case Management in the Crown courts should encourage pleas to come in earlier.
However, blaming cracked trials on the defence needs to be explored further, Criminal Law Solicitors’ Association past chair Bill Waddington argues: ‘It is usually down to the CPS making the wrong charge and then, at the last moment, saying they will accept a guilty plea to a lower charge; or it may be due to late service of evidence which defendants have been seeking for months.’
Saunders counters that the CPS spent three days training every prosecutor on the Transforming Summary Justice initiative. ‘In some parts of the country we are seeing trials happening on the first day of hearing. Some areas are seeing a 30% reduction in trials, which means we can put resources into ‘‘not guilty’’ cases.’
The changes have meant using more external agents, including more solicitors, for some of the trial courts (up from 9% to 25%). But she is also aware of the risks of deskilling the service, stressing: ‘While this gives us flexibility, we need to make sure we still have our trial advocates.’
Earlier this year, the CPS Inspectorate was critical of the ‘limited’ progress the service had made in improving the quality of its internal advocates. But Saunders takes the unusual step of criticising its findings. ‘It didn’t look at the advocates themselves but at our in-house assessments of them,’ she remarks.
Trainees start on £23,500. Those joining at grade 7, generally equivalent to three or more years’ PQE, can earn up to £55,000. At the most senior level, directors general in charge of several teams are paid around £115,000, with the Treasury solicitor earning about £160,000.
‘My hands are completely tied over pay,’ Jones acknowledges. ‘Pay restraint in the civil service is not going to change and lawyers are not exempt – why would they be? What we have to be is completely honest about the things we can do something about, such as the benefits in terms of training, development and flexible working.’
There are modest bonuses of £1,100 for the top performers at the lower grades. At the senior level, bonuses are set centrally for the top 25%. ‘I didn’t get one this year,’ Jones says wryly.
‘I am not getting my retaliation in first,’ he continues, ‘but we have to accept we have gone through a lot of change and people may not yet feel an association with this department. However, people do have pride in their work and value how interesting it is.’
What attracts many lawyers is the ability to combine personal and professional responsibilities. About a fifth of the less senior employees within the GLS work on a formal part-time or job-share basis. Some 15% of full- and part-time staff work from home on a regular basis as part of a formal arrangement.
The department also scores highly on diversity. Nearly two-thirds are women, with equal numbers of men and women at the most senior levels. Some 15% declare an ethnic minority background (10% at the most senior levels).
‘Our gender ratio is very unusual,’ Jones says. ‘I was sitting in the Rolls Building when they were announcing the new Financial List and looked around at the sea of men in grey suits – as a man in a grey suit. But my world is very different. It’s not magic, but a combination of factors, including the attraction of the work and the way we structure it. We look after people taking career breaks and plan for them to come back so they don’t have to scrub around for a role.’
Case study – Chris White
Chris White, 29, joined the Government Legal Department in September last year, two years after qualifying into a commercial property role with London firm Harbottle & Lewis.
He had applied unsuccessfully to train with the GLD so jumped at the chance when he saw it was recruiting.
‘I have been trying to figure out the attraction,’ he says.’ Someone suggested there was something about working for the public sector that is in your blood – my father is in the navy and my mother is in education. But I also have a keen interest in politics so being able to work in this world is fantastic.’
While salaries are lower than in private practice, White says it wasn’t an issue for him. ‘It isn’t as though you are badly paid just because lawyers in the City are paid so much – it’s still better than many other professions. Also there are lots of other benefits with fantastic training opportunities, with courses every week; great career development; good pensions and holidays; flexible working and social and sporting events.’
He has worked in the Department for Work and Pensions since he started. ‘When you apply, you are asked for your preferences and I put down the Ministry of Justice and Home Office as the juicy departments,’ he recalls. ‘I must admit DWP wasn’t one of them but the level of work has been fantastic. I had only done relatively run-of-the-mill litigation before but I have been allowed to develop my skills in this area – what is so good is you are never pigeon-holed.’
Being based in the department has meant working alongside policy colleagues, statisticians, economists, analysts and operational staff. ‘This makes you a much more rounded lawyer,’ he says. ‘In private practice, I felt so far removed from everything, I felt I was giving advice in a vacuum.’
Working in the GLD does mean being involved in what may be very controversial policies. ‘There will be things you might not agree with but you get to see the reasons behind the decision-making. Having that 360-degree view of what is happening opens your eyes to the pressures on government. You appreciate your role is to make sure every decision the government makes is legal and that feels really empowering.’
Jones runs the GLD as a legal business: ‘The client relationship is very special when the client is the government. But we are accountable to our client departments for the quality, cost and efficiency of what we do.’
Litigators and case work lawyers have chargeable hours targets. The hourly rate for lawyers ranges from £93 to £165 and from £64 to £78 for legal support staff. Last year, the litigation department handled more than 62,000 cases, up from 48,000 the previous year.
The GLD’s budget (£143m in 2015/16) is raised almost entirely from the fees it charges clients. The current business plan is to keep charges flat where possible. Last year, client departments received a rebate of £2.78m.
‘We are constantly looking to ensure work is done at the right level,’ he says. ‘We have case officers who aren’t qualified lawyers, but we haven’t yet developed a coherent paralegal cadre and I think we should.’
While the GLD has taken on 250 lawyers over the last two years, if the work is done more efficiently and demand remains flat, that may mean fewer lawyers – ‘but it is not as simple as that because demand goes up and down’, he says.
There is an argument that ‘charging’ clients is just public money going round in a circle. However, Jones argues: ‘The rationale is this imposes a level of transparency and discipline you wouldn’t have if there was just a big “pot” and it isn’t clear who is paying for what. Nobody is making a profit, but there is a much clearer audit trail and it places a discipline on me to ensure that what we are doing is cost-effective. There is somebody to “beat up” if that isn’t the case.’
One of the benefits of the GLD has been in bringing specialisms together. The litigation group has about 380 lawyers, the employment group 100 and the commercial group more than 100.
The next step is to review work that is sent out to external lawyers, he says, ‘so we can get a central grip on it and see if there is more we can do in-house’.
Jones will also be reviewing external panels: ‘It is all up for grabs. We probably don’t put the screws on enough and this will give us the opportunity to get better value out of our private practice lawyers.’
With so many controversial policies on the government’s agenda, how politically aware do lawyers need to be to work for the GLS?
While the service would not, of course, test applicants on their political views, he says: ‘We look for people who have an interest in and understand the role law can play in public policy. Our job is to help the government govern well, within the rule of law, and it is in the bloodstream of the civil service generally that you don’t let personal views get in the way of doing your job.’
Grania Langdon-Down is a freelance journalist