The new DPP must stand with the public on crime and terror
Instead of liberal understanding, updating the law on treason would bring jihadists to justice
Who would want to be Director of Public Prosecutions? Well, a chap called Max Hill, as it turns out. Mr Hill, a QC, was appointed yesterday to succeed Alison Saunders, who is stepping down from the post earlier than she probably intended. Despite what might charitably be called a chequered term as the country’s head prosecutor, she is off to a big City law firm with all the rewards that brings.
She hands the poisoned chalice, albeit one ameliorated by an annual salary of £204,000, to Mr Hill, a barrister who made his reputation prosecuting several high-profile murder cases, including the killers of Damilola Taylor. Latterly, he has been the Government’s adviser on counterterrorism laws and was recommended for the post by the Attorney General, Geoffrey Cox QC, having earlier been proposed by the previous attorney general, Jeremy Wright QC.
If you detect a cosy little cabal of top QCS sharing these jobs out among themselves, you are doubtless being unfair. If you suspect that they all lean politically to the Left – well, that is not entirely evident either, though Mrs Saunders’s predecessor, Sir Keir Starmer, is now a Labour MP and shadow cabinet member. But if you think that the DPP and the Crown Prosecution Service do not exactly command the confidence of the public then you are spot on. It is to be hoped that Mr Hill appreciates that, too.
He needs to begin his tenure by acknowledging that much has gone wrong in the criminal justice system. No one pretends his job is easy. The post dates to the Criminal Law Commission of 1845 which described the duty of prosecution as “irksome, inconvenient and burthensome”. It recommended the creation of a new legal office to take on a function that was previously the responsibility of the injured party. It was not until 1880 that the first DPP took up the post; and few incumbents since would disagree with the commission’s downbeat assessment of the role.
Over the years, successive DPPS have been the whipping boys for failings in the criminal justice system, sometimes fairly, sometimes not. Mrs Saunders contends that it is unfair and that the CPS had maintained a high standard, despite staff and funding cuts. But it is hard to reconcile that statement with what we have seen over the past few years.
In a report published at the weekend, the Commons justice select committee criticised the outgoing DPP’S failure to get to grips with disclosure problems that led to the collapse of multiple rape trials. She was accused of not recognising the extent of difficulties caused by delays in releasing, or withholding, evidence in prosecutions. There is a systemic problem inside the CPS that may well have been worsened by budget cuts but which nonetheless needs to be addressed.
To be fair, the CPS is often trying to put into practice not only the requirements of the law but the demands of politicians desperate to curry favour with pressure groups or signal particular virtues. To what extent were the failures to disclose evidence in rape cases driven by political pressure on the police and the CPS to get more convictions? Only this week, police were told they must do more to tackle “hate crime” which will see arrests go up and prosecutions, too.
Mr Hill will face particular pressure on a subject that he knows well: terrorism. As this newspaper disclosed on Monday, the CPS was unable, or unwilling, to prosecute the two notorious jihadi alleged killers Alexanda Kotey and Shafee El-sheikh. As a consequence, the Government was landed with a dilemma over what to do with them which has triggered a monumental political and legal row that could yet see the pair walk free.
So, where does Mr Hill stand on all of this? The auguries are not promising. As the so-called terror “watchdog”, he has sought out the views of Islamist groups, including the organisation Cage, which once praised the murderer known as “Jihadi John” as a “beautiful young man”. He has also taken issue with the description of jihadists as “Islamist” and believes the epithet terrorism should not be attached “to any of the world religions”. He prefers the term “Daesh-inspired terrorism” though how that applies to extremism linked to, say, al-qaeda or Hizbollah is not explained.
Such ambivalence is unlikely to be appreciated by the many moderate Muslim groups trying to face down the extremists in their midst, nor understood by the public when atrocities are carried out predominantly by fundamentalist Muslims.
If Mr Hill is starting off by challenging the very basis of the terrorists’ inspiration, there will be trouble ahead. Indeed, it is already being asked why he was selected for this post given the controversy it was likely to cause. People have legitimate concerns here. For instance, why have there been so few prosecutions of 400 or so returning jihadists and what has happened to them all? Mr Hill takes the view that they should not be hounded for youthful naivety, though that in itself seems naive.
If prosecutors are struggling to find a crime to hang on these fundamentalists, they should read a new report from the Policy Exchange think tank which proposes updating the law of treason with a view to emphasising the act of betrayal. Since Kotee and El-sheikh were UK citizens when they went to fight, extending the existing law to acts committed against British interests abroad would enable their prosecution in the UK.
As one of the report’s authors, Tory MP Tom Tugendhat, puts it: “Betrayal, or undermining your country by helping its enemies, has always been recognised as a terrible crime. It destroys the bonds of trust that hold a community together.”
Labour MP Khalid Mahmood said bringing charges for treason would “signal that our community takes seriously the obligations that we owe each other”. Prosecution decisions are the most visible and serious manifestations of that sentiment and they are now in Mr Hill’s hands. Will he use them wisely – or be guided by some misplaced notion of what he thinks is right and everyone else knows to be wrong?