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When officials speak out – the DPP

The Director of Public Prosecutions, Keir Starmer, faced criticism earlier this week, after he argued that Conservative Party proposals to review criminal  prosecutions policies were unnecessary. The particular proposal concerned people who use force to defend their property – with the Shadow Home Secretary Chris Grayling calling for prosecutions to be brought only where the force is ‘grossly disproportionate.’ The DPP, however, argued that the current test of ‘reasonable force’ is a sufficient safeguard. Starmer told the BBC:

We would only ever bring a prosecution where we thought that the degree of force was unreasonable in such a way that the jury would realistically convict.

The merits of this issue aside, what is interesting is the response this has provoked. According to the Daily Telegraph, the comments have ‘widened the rift with the Conservatives’ and increased concerns in that party ‘about what they see as Mr Starmer’s Labour bias in recent months.’ The Daily Mail also reported:

Privately, party officials were furious that Mr Starmer had again been drawn into a public denunciation of their policies. ‘He is there to enforce the law,’ one said. ‘He is not there to make the law.’

The difficulty is that Starmer is not making any law, but expressing an opinion on a policy proposal – one that is in his area of expertise and which he deals with in his work. I can see why this annoys Opposition politicians and it does raise a number of issues – for example, the extent to which public officials should speak out on political matters. This is particularly difficult where the particular job comes with a public profile. This is a much broader issue that arises with many other officials, for example with Sir Richard Dannatt’s criticisms of the Labour government. The concerns are not unique to the DPP.

Nor is Starmer the first DPP to speak out on policy proposals. His predecessor Sir Ken Macdonald spoke out against the Labour government’s proposals to allow suspected terrorists to be detained for 42 days without trial (while those proposals were going through Parliament).

In his blog, Douglas Carswell MP echoed the above criticisms, but also focused on the fact that the DPP is unelected and criticised Starmer for ‘second guessing juries’ (because the DPP will not bring a prosecution where he thinks no jury will convict).  The difficulty with this line of criticism is that prosecutors have to make some assessment of the likelihood of success before bringing a prosecution. This is stated openly in the evidential test on the DPP’s website, and without it resources would be wasted in preparing cases where there is little prospect of success.

None of this is to deny the difficult questions about the role of public officials speaking out on policy issues (not to mention the even broader issues about the potential influence of unelected experts on policy). In any event, the elected politicians will have final say and can ignore the DPP’s opinions if they decide to change the law. My concern is that allegations of bias are used strategically by politicians from all sides to silence their critics (while other  officials may be cited with approval when supporting the politician’s view). Maybe it would be more interesting to hear why they disagree with the official.

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