NS Interview - Ken Macdonald

Guantanamo was a legal black hole, says the director of public prosecutions, but he sticks up for Be

Before becoming Britain's top prosecutor, Ken Macdonald had spent his legal career defending people, particularly terrorism suspects. I begin our chat by putting it to him that the problem with the modern criminal justice system is no longer that the poor might be unjustly convicted, but that "today in Britain in the 21st century it is too many of the guilty going free".

The quotation comes from Tony Blair, in his speech to the Labour conference in 2003, but I leave it to Macdonald to work that out. He ponders. There has to be a balance, he says. "People in this country have a reasonably developed sense of fairness. When the guilty are acquitted, that is a matter of public concern." But which, I wonder, is worse? "There is something particularly offensive about innocent people sitting in prison cells. It is more offensive to the state, if the state locks up innocent people."

The state taking offence is an intriguing concept. The role of the state, and the public's perception of that role, are things the director of public prosecutions refers to several times. He has spent much of his 15 months in the job trying to turn the Crown Prosecution Service, the Cinderella of the legal world, into a more powerful body. When it started in 1986, many lawyers and politicians saw no need to split prosecutors from crime investigators.

The result was, Macdonald says, an unhappy compromise: a new organisation with "a limited remit, poor funding and very low status". The consequences of that, he explains, were damaging for society. "We haven't had a body that has spoken up for witnesses and victims, that's been committed to the firm prosecution of cases through the courts. The result is that people have got the idea that it's only defendants' rights that count. That's dangerous. If people really feel that the criminal justice system is all about getting people off, then you have calls for reform that want to rebalance it too far in the other direction. So the absence of a proper prosecuting authority actually in the end damages defendants' rights as well as the rights of victims: it distorts everything."

Now the service is back in sync with the police, with lawyers "co-sited" in police stations. Macdonald has made sure his people are playing a more active role in investigations, dealing with witnesses and determining charges. In the past, the organisation had trouble recruiting talented and ambitious personnel. Now, he says, that is changing. "We're recruiting more lawyers from private practice. We're giving crown prosecutors far more interesting work. We've taken over responsibility from the police in deciding who should be charged and what offences they should be charged with." He has sought out best practice around the world, but the most obvious model is the United States, where the district attorney's office is regarded as glamorous.

The service got a big increase in the latest spending round, at a time of overall budgetary squeeze, and has brought in about 3,000 extra lawyers. "We don't want to be an anonymous back-room government department any more," Macdonald says. "We want to be on the front line. We want people to see us . . . We want people to feel they have some stake in us. We're in the foothills. It's a long-term project that will way outlast my period here."

He is nearly halfway through his contract, but it is likely to be extended. After that, Macdonald says, he will probably go back to his old chambers, Matrix, that outpost of human rights defence, of which Cherie Booth has long been part. But how does Macdonald reconcile his former (and probably future) life with his present one? After all, this is a man in charge of the nation's prosecutions who had himself never prosecuted a soul. "I have no difficulty at all, as a defence lawyer and someone who was interested in human rights, in being a prosecutor," he replies. "Prosecutors - properly understood - are a bulwark against unfairness."

So how liberal is Macdonald? Is this just another case of poacher turned gamekeeper? His tenure has coincided with a further erosion of personal liberties and the encroachment of the state. The DPP is a staunch supporter of legislation granting more powers to convict. On the decision to allow previous records to be heard in court, he points out that it is up to the judge in each case, but adds: "My own personal view is that jurors are entitled to hear relevant material about the defendant in a criminal case when they are coming to a judgment on whether he has committed a crime."

He sees no reason why evidence from telephone intercepts should not be admissible. Human rights groups agree with him, arguing that if a phone is tapped, a defendant should at least know what the security services are using against him or her. The government does not, arguing that such an approach might compromise our spooks. Macdonald says his foreign counterparts tell him that bringing in such a measure would be a signal that British courts were serious about fighting organised crime and terrorism.

We talk about Guantanamo. Macdonald went through the case notes against the captives before their return to Britain. He acknowledges that he advised the police on whether to bring charges, although he would not reveal the nature of his advice; they were quickly set free. I get the feeling he does not think much of the whole process.

"You will know that our Attorney General made strenuous efforts to deal with this directly with the Americans," he says. "We don't have a Guantanamo. Our concern as prosecutors is to see that when we bring charges against people we bring criminal charges, which can be argued in criminal law courts in accordance with due process." In case I haven't got the point, he adds: "If we do form the view that there is the prospect of a trial against anyone, we will prosecute them in an open court in front of an impartial tribunal with full disclosure of the prosecution's case and with the burden of proof beyond reasonable doubt."

Doesn't the same apply to Belmarsh, where terrorist suspects are not even told what they are suspected of? "Belmarsh is the opposite of Guantanamo," Mac-donald insists. "The whole point of Guantanamo is that there is no recourse to due process. That's why it's a legal black hole. Belmarsh has never been outside the jurisdiction of English courts. Everything that has been done has been through the courts system, sanctioned by the Court of Appeal." Yes, but the law lords overruled that. Charles Clarke, the new Home Secretary, has responded by announcing "control orders", house arrest without trial for British as well as foreign terrorist suspects. Macdonald keeps his counsel on that, but is understood in the legal profession to have concerns about the human rights implications.

We leave it at that. I ask him whether he agrees with the prisons chief, Martin Narey, that Britain's prison population is "scary" and "horrifying". Macdonald notes that the current numbers are 75,000 and rising. The UK sends more people to jail per capita than any other country in Europe. Only the US, Saudi Arabia ("and China", he adds helpfully) lock up more. He says alternatives to prison could be found for "people at the lower end", such as those with drink or mental health problems. "Anyone who has visited a prison and seen some of the people in that category in prison would be wondering what the point was. Everyone in the criminal justice system is concerned at the prison population going remorselessly up year by year." Ultimately, he says, it depends on what kind of society we want. "We have to be sure that in all cases we are using prison for the right people. We need to be much more imaginative about restorative justice, con-ditional cautions and about trying to break the cycle of offending," while at the same time ensuring that "people who commit serious offences and who are a danger to the public should get long sentences".

I suggest judges are reluctant to keep people out of jail because of the tabloid newspapers. Macdonald suggests I am suffering from bog-standard liberal elitism. "People are entitled to read whatever they want and to come to their own views. If the public get the idea - if - that criminal justice is being run by a liberal elite that doesn't understand ordinary people's concerns, I think that's very dangerous." He hastens to add that the very size of the prison population suggests this is not the case.

It was David Blunkett who was seen as most in tune with tabloid sentiment. Macdonald says the record and the motivation of the former home secretary have been misunderstood. "I thought he had an understanding, which he wasn't always given credit for by the liberal left. He understood that ordinary people had a stake in criminal justice, and you need to have conversation with people about it. You need to have some respect for people's views, and you couldn't just dismiss them and pretend they didn't exist. To do that is very dangerous. He had that insight about the democratic element in criminal justice that could easily be caricatured as populist, but which I think was more sophisticated than that. I admire him for that."

This article first appeared in the 07 February 2005 issue of the New Statesman, Push here