Scarcely half a decade ago, HM Customs and Excise and Inland Revenue were still two separate organisations which maintained their own in-house prosecution services. In Customs, overworked lawyers tended to be side-lined by investigators who had too much control and dealt directly with counsel. Problems over disclosure led to the collapse of some high profile cases and to the report by Mr Justice Butterfield in 2003, which recommended an independent prosecutor completely separate from the main department and accountable to the Attorney General. At the same time, the Government took the decision to merge Customs and Inland Revenue. They became HMRC, and in 2005, David Green QC became the first Director of the Revenue and Customs Prosecutions Office (RCPO). On 2 April 2009 the Attorney General’s Strategic Board (of which Green is a member) decided that RCPO should merge with the Crown Prosecution Service (CPS).
I spoke to David Green QC in February, shortly after he gave evidence to the Justice Select Committee on the workings of the CPS. One MP presciently questioned him about the apparent multiplicity of prosecutors in different organisations. He replied that the RCPO was set up as a result of the report which concluded that “if prosecutors were all merged into one monolithic organisation, specialism and expertise in certain keys areas such as, in our case, fiscal and tax law, customs and smuggling law, would quickly be diluted and lost … there will always be competing and emerging priorities at different times, therefore a pressure to shift resources within the large organisation to that new and emerging priority”.
The future of the RCPO
These concerns ought to be allayed in the new structure. From April 2010 the RCPO will become a specialist division of CPS headquarters, dealing with tax and VAT, export control and excise (smuggling will be hived off to the new Border Agency). It will be ring fenced with its own budget and Green will, as before, report directly to the Attorney General. He called the announcement “a very positive development. It is about combining the strengths of our two organisations in order to build a public prosecution service for the future. It is also a reflection of the professionalism of our staff and the achievements of both departments without which such a development could not be contemplated.” As he put it to me, the RCPO was set up for a particular time and in response to a specific problem (the failed prosecutions). Now it is “mission accomplished” having “succeeded in our key task, namely the restoration and maintenance of public and judicial confidence in HMRC prosecutions”. He will stay until April 2011, “to see the process through”. What happens after that of course is mere speculation.
Suitability for the role
The organisation will at first remain in their premises on the South Bank where I saw him in February. His room has a particularly good view of the Thames and of the tip of King’s Bench Walk, where his career at the Bar began 30 years ago. By 2004, Green was dividing his practice fairly evenly between defence and prosecution, the latter almost all coming from Customs and Excise.
When he saw the advert for a director of a new RCPO he thought nothing more about it. Others, though, spotted his suitability. After a conversation with the then Attorney General, he applied for and got the job at the end of 2004. Having been a “one man band” at the Bar he took over what has become an organisation with 350 staff. He dismissed the idea that the Bar was an inadequate preparation for that. He found that running a large case in court on either side is project management, deciding what will happen if a particular question is asked is risk management and the ability to distil a large amount of information speaks for itself.
Independence and case ownership
Amongst Green’s achievements has been the “physical and philosophical” separation from the HMRC, instilling ethics and encouraging individual responsibility for case ownership. The lawyers have a smaller case load for which they take “full responsibility”: getting the right indictment, seeking advice where necessary and applying the code test and conducting disclosure properly. Gone are the days when a lawyer, swamped, would pass a case on to counsel, asking “can you please sort this out for me?”
Disclosure has been an ongoing challenge. He supported the February 2006 protocol on management of disclosure of unused material in Crown court proceedings, but he still finds judges who ask, “what’s the harm?” in disclosing material which does not pass the test set out in the Criminal Procedure and Investigation Act 1996.
In/out of house advocacy
One obvious difference between the RCPO and the CPS has been the former’s reliance on the independent Bar. He appreciates that many CPS trials are relatively short and manageable, but it would make “no sense at all” for his lawyers to “spend days, weeks out of the office conducting a trial”. He has a small in-house advocacy team but they only number seven out of a total of 100 lawyers, a fair percentage of whom are barristers. The seven do PCMHs, pleas, sentence hearings, Newton hearings and bail applications at Croydon and Isleworth Crown Courts on a Thursday.
Instructions go out from the RCPO’s nominations office to members on the Attorney General’s Unified List of Prosecution Counsel. There are 172 on List C (the most junior, 1-5 years’ Call), 150 on List B (5-10 years’ Call) and 94 on List A (10 years’ Call and over). At the top are the 20 standing counsel.
Green is very proud of those standing counsel as people who have demonstrated expertise in customs and revenue law, disclosure, getting evidence from abroad, and standing up “pleasantly and in the right way” to difficult opponents who represent extremely determined defendants. The battle carries on outside trials in applications for forfeiture and for restraint. The expensive and difficult process of identifying and seizing assets is further clouded at times by the intervention of third parties, ie wives who divorce their husbands promptly on conviction. As he said to the select committee, “fiscal and tax law and customs law are not for the fainthearted”.
Although members of the list also defend, if they reach standing counsel their first loyalty is to the RCPO. “I don’t think one would expect someone prosecuting a major drugs trial for SOCA to appear in a similar case [for the defence] the following week.”
Fees: “VHCC lite”
Last May Green found himself in front of the Public Accounts Committee answering questions about fees paid to counsel. The headline was that this amounted to £75 million over the previous five years, 55 per cent of which went to members of four chambers. Headlines aside, the total is less than it used to be, primarily due to a fees scheme which he calls “VHCC lite”, “the fairest and best around”. As part of case ownership in the heavier cases, the lawyer will discuss with counsel the work that needs to be done under the obvious headings; this is broken down to an allocation of hours which must be agreed in advance. RCPO does not pay for work which has not been so agreed. It should mean that counsel is “always ready with the right work at the right time” and the fee’s budget can be properly managed. Fee notes must be submitted monthly and are paid on a monthly basis as the case progresses.
The current operating annual budget of £35 million will no doubt decrease as the RCPO shares some overheads with the CPS. With luck they will be within striking distance of the goal of being the first self-sufficient prosecutor, that is, with a budget with the value of confiscated assets exceeding the operational budget. At the moment the RCPO receives 18 per cent of that it actually obtains under a confiscation order, money which has been ploughed back into that work by increasing staff who have “real expertise”.
When his old chambers moved outside the Temple, it was David Green who transformed the wasteland of a front courtyard into an urban garden. He confesses that he would have preferred to raise vegetables there. His tenure at the RCPO at least has produced a fine harvest.
David Wurtzel is Counsel’s consultant editor
Payback: recent RCPO cases
RCPO boasts a 91% prosecution success rate. During 2007/08, it completed 1,289 cases involving 1,712 defendants (RCPO Annual Report 2007/08).
Recent cases include:
VAT fraudster ordered to repay £26m—RCPO granted a confiscation order for £26,060,383.17 against Craig Johnson, who had been convicted earlier for his part in a major VAT fraud.
Organised drug gang imprisoned for 125 years—Seven men sentenced to a total of 91 years’ imprisonment at Liverpool Crown Court following a successful RCPO prosecution.