By Antonia Porter, Kent Law School, University of Kent

When Carl Stychin spoke at this year’s SLSA conference plenary, ‘Socio-legal studies at a watershed? A conversation’ I listened with particular interest. His reflections about the pervasive creep of neoliberalism’s lacky, managerialism, on academic behaviours and priorities resonated with the paper I was to deliver the next day.

As part of the Criminal Justice stream, my paper concerned the ways managerialism manoeuvres within the Crown Prosecution Service in a manner often clandestine, affecting aspects of the prosecutorial role in unintended ways. Van de Bunt refers to the three ‘hats’ prosecutors must wear; that of ‘government employee’, ‘manager’ and ‘magistrate’.[i]It is with respect to this latter function- the prosecutor’s independent exercise of discretion- that managerialism can emerge as an unexpected collaborator.

My work concerns the prosecution of intimate partner abuse, particularly at the point a victim withdraws her support for the prosecution. As any practitioner will tell you, this is an all too common occurrence with 1 in 3unsuccessful domestic abuse prosecutions being attributable to victim retraction, non-attendance or due to the witness turning ‘hostile’ (as compared to 1 in 10 in other types of criminal offence).[ii]The prosecutor must therefore regularly confront the question of how to proceed in the face of an unwilling complainant. Succinctly put, they can either discontinue the case, proceed in her absence (should other corroborative evidence allow) or apply to the court to issue a summons to secure her attendance at trial.

I conducted primary empirical research in 2017 with a sample of prosecutors in the South of England which revealed that, faced with this common dilemma, prosecutors tend to tenaciously pursue convictions. Moreover, their preferred method is to apply for a summons to secure her attendance at trial, against her stated wishes. The autonomy and safety diminishing potential for abused women from this routinised or habitual working practice is for another paper. But the question of howthis practice has emerged is of particular concern, not least because CPS guidelines themselves express that to issue a summons to a victim of domestic abuse is to be done only ‘as a last resort’.[iii]Enter managerialism.

Managerialism has been deployed as a technique, strategy and, some have argued, ideology of successive neoliberal governments. The regulation of all domains by the market and the proliferation of economic principles in all areas distinguishes the neoliberal state. Economic logics are promoted even in state institutions even where profit is not their purpose. Neoliberalism and its associated nostrums have become, it has been argued, the ‘hegemonic discourse of our times’, a ‘common-sense’ orthodoxy that saturates our ways of being and doing.[iv]

Whilst at its most doctrinaire neoliberalism might promote the privatisation of state services, public prosecutions have not been ‘contracted out’. Rather the CPS is effectively encouraged to compete with itself for improved ‘effectiveness’ (measured in terms of, amongst other things, conviction rates) within demands for ‘economy’ and ‘efficiency’. Techniques of managerialism include target setting and performance monitoring, system modernisation to improve productivity and delivery of ‘policy objectives’ or ‘core quality standards’.These institutional ambitions are typically overseen and encouraged by an expansion of management personnel.

The confines of a blog post do not allow for thorough discussion of the ways that such techniques of managerialism have contributed to the identified working practice of routinely summonsing non-compliant victims of domestic abuse. However, the following factors are indicative:

Policy objectives that headline domestic abuse as a ‘particularly serious’ crime, the celebration of increased conviction rates year on year and the expectation that ‘more perpetrators be brought to justice’[v]set the tone that cases ought not be dropped. Another factor is manager expectations and their monitoring of area wide conviction rates that prosecutors indicated put pressure on them to make decisions that secured positive conviction outcomes. Prosecutors also spoke of how management appraisal of individual‘adverse outcome’[vi]files left them open to personal and professional criticism should they not have done ‘everything’ to secure a conviction.

In addition to policy objectives, significant reductions in staff numbers to satisfy 26% annual budgetary reductions between 2009- 2015[vii]mean that prosecutors overwhelmingly felt that there were not enough hours in the day. The effect of system modernisation through the digitisation of all case files has seen prosecutors assigned a computer generated daily ‘task list’ subject to management monitoring. These factors contributed to a sense that quick discretionary decision-making was key; routinely issuing summons did not require detailed assessment of the particulars of the case and therefore facilitated a quick decision.

Prosecutors interviewed were clear then that the routine use of summons satisfied the demands and expectations of managerialism. It satisfied both policy objectives and facilitated expeditious decision-making. It was also personally and professionally advantageous to prosecutors as it did not carry the risk of criticism from managers as it, ostensibly, complied with CPS headline policy objectives and performance targets that endeavour to treat domestic abuse with due seriousness. The effect then of managerialism on prosecutorial decision-making appears to be a restriction or narrowing of professional discretion, inhibiting genuine and informed decision-making on a case by case basis. The corollaries for women’s safety and autonomy should not be overlooked.

[i]Van de Bunt, Hendrik,Officieren van justitie: Verslag van een participerend observatieonderzoek; public prosecutors(with a summary in English) (Tjeenk Willink, 1985).

[ii]Crown Prosecution Service, ‘Violence Against Women and Girls Crime Report 2015-16’, 31. Available at 20 April 2018.

[iii]Crown Prosecution Service, ‘Domestic Abuse Guidelines for Prosecutors’ (2014) available at 20 April 2018.

[iv]Robert Reiner, Law and Order: An Honest Citizens Guide to Crime and Control (2007) 1-2.

[v]Number ii above.

[vi]Any case that does not result in a ‘guilty’ disposal.

[vii]Hansard online, ‘Crown Prosecution Service: Funding’ (2017) vol 619.