Assessing the National
Prosecuting Authority
Complexities and possibilities
1
Measuring Performance
• Measuring the performance of the NPA in
fulfilling the core mandate of prosecution is not
straightforward
• The most sensible measure of the performance
of the criminal justice system is the number of
convictions (i.e. successful prosecutions) in
relation to the number of crimes reported to the
police, on a year-on-year basis
• However this measure incorporates the
performance of a variety of state actors in the
criminal justice system
2
Conviction rates
• NPA has emphasised ‘conviction rates’ as the major
measure of the performance of the prosecution service
• The NPA records a ‘conviction rate’ of close to 90%
– 9 out 10 cases prosecuted result in conviction
– ‘… any system which pays attention to conviction rates, as
opposed to the number of convictions, is liable to abuse’
– a prosecutor could choose to make only one successful
prosecution and boast a ‘100 per cent conviction rate’
• More recently the NPA has begun to emphasise
‘finalisations’ year-on-year
3
Finalisations
• Finalisations include:
– Verdicts (‘guilty’ and ‘not guilty’)
– Admission of guilt fines before plea
– Stopping of a prosecution after plea
• Finalisations number around 325 000 per year
– Yet 1 000 000 cases are enrolled each year
– Thus less desirable outcomes predominate
4
Outcomes
5%
35%
29%
Finalisations
Withdrawals
Outstanding
Diversions
31%
5
Finalisations per prosecutor
• NPA compares itself year-on-year
– does not take into account increasing resources
• In 2009 NPA had +/- 3000 prosecutors and
advocates
– Each ‘lawyer’ thus yielded 110 finalisations per year or
2 per working week in a 50-week year
– Number ‘concluded’ comes to 4 per week per lawyer
if withdrawals are added
• But to process 1 000 000 cases requires closer to
7 per week per lawyer with 3000 lawyers
6
Comparative
Finalisations per prosecutor
• Crown Prosecution Service (CPS) for the City of London,
England, had 490 prosecutors who finalised 204 000 cases
in 2009 – around 9 per week per prosecutor
• This productivity is associated with a rate of conviction
after trial of around 60–70 %
• Each prosecutor in London thus yielded around 270
convictions per year, compared to South Africa’s 110
• The various CPSs for the whole of the UK have roughly the
same number of prosecutors as South Africa, serving a
population 35% larger than South Africa’s.
• Roughly 5 million crimes are reported to the police in the
UK, a number similar to the total number of crimes
reported to the police in South Africa.
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The workload argument
• It is often assumed that prosecutor performance, in the
sense of how many cases a prosecutor is capable of
finalising, is negatively affected by work load
• The argument is that high work load makes prosecutors less
efficient, which means that their rate of throughput – the
ratio of verdicts to workload – is reduced
• The argument suggests, for example, with a light load of
only 10 cases, a prosecutor might manage 7 verdicts (70 %),
but with a load of 100, he/she would only manage 50
verdicts (50 %)
• The argument says if the workload on each prosecutor
could be reduced, then the ratio of verdicts to workload
would improve
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Does the data support the
workload argument?
• SAPS data from 2000 on cases referred to court and outcomes per
province are compared with prosecutor numbers per province in
2000
• The prosecutor workload in a province was calculated as the
number of cases referred to the NPA by SAPS for the 20 most
serious crimes divided by the number of prosecutors in that
province
• The prosecutor throughput in a province was calculated as the
number of verdicts for the 20 most serious crimes divided by the
number of prosecutors
• The rate of throughput was calculated as the throughput (number
of verdicts per prosecutor) divided by the workload (number of
cases per prosecutor) and expressed as a percentage
9
The relationship between prosecutor workload and rate of throughput
60%
Rate of throughput (verdicts per case)
50%
40%
30%
20%
10%
0%
0
50
100
150
200
250
300
350
400
Workload (cases per prosecutor)
10
Workload increases throughput
• This data suggests that at the range of average
workloads present in 2000 among the provinces
(211–380 cases per prosecutor per year), an
increase in the workload per prosecutor
increased the rate of throughput
• Prosecutors in provinces with a higher-thanaverage burden (350 or more cases per
prosecutor) achieved the best rate of throughput
(53–56 per cent), while those with the least
burden (211 cases per prosecutor) achieved the
worst rate of throughput (37 per cent)
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12
Workload increases conviction
throughput
• At the range of workloads present in 2000 (211–380 cases
per prosecutor per year), an increase in the workload per
prosecutor increased the rate of conviction throughput
• According to this data, prosecutors with a higher average
burden (more than 350 cases per prosecutor) achieved
higher rates of conviction throughput (44 %, while those
with lower burdens (under 250 cases per prosecutor)
achieved lower rates of conviction throughput (28%)
• The data strongly suggests that the optimum level of
workload is at 350 cases referred per prosecutor or higher.
Accurately to predict the optimum workload would require
more data
13
60%
Predicted verdicts per case
50%
40%
30%
20%
10%
0%
0
200
400
600
800
1000
1200
Case load per prosecutor
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Theorising
prosecutorial response to resources
• Faced with more resources (a higher number
of prosecutors per 100 000 cases), prosecutors
could either increase the number of cases
they undertake or increase the effort they put
into each case
• Increasing cases would maximise throughput
and increasing effort per case would maximise
conviction rates
15
The theory in South Africa
• Particular emphasis has been placed on
conviction rates as a performance measure of
individual performance, expressed as a
percentage of cases finalised in court rather than
as a percentage of cases referred by police
• Prosecutors faced with more resources (a
relatively lighter case load) may choose to spend
more time on ensuring their cases are successful
rather than choosing to undertake more cases
• Given our immense case backlog, this may not be
the most desirable response
16
Workload and prosecutorial discretion
• Indeed the problem is compounded by the fact
that prosecutors have also interpreted their
discretion on the decision to prosecute so
broadly that effectively the NPA is also choosing
the lighter workload
• This is done through the massive rate of
withdrawals – which are simply decisions not to
prosecute
• Cases not prosecuted within a year may in the
next year be ‘withdrawals’
17
NPA Performance over time
• If it is assumed that trial burden is similarly distributed
around the country and has remained similar year on year,
comparisons can be made in order to measure relative
performance over time
• When this is done, the more recent performance of NPA
does not fare well
• This is because while the number of prosecutors in the NPA
has increased year on year, the number of finalisations has
not kept pace with the increase in human resources
• Since 2003 the number of employees in the NPA increased
by 33 per cent from 3 525 to 4 690
• Over the same time period the number of verdicts has
shown a general downward trend
18
Decreasing verdict trend despite
increasing human resources
1000000
900000
800000
700000
600000
500000
400000
300000
200000
100000
0
Serious charges referred
to court (SAPS)
Court cases with verdicts
(NPA)
19
Impact on Justice
• Many are held in custody for months or years
only to have their cases withdrawn
– Data from a 2008 study showed about half of people
in custody at the time their case was concluded, had
their case end in withdrawal
• Crimes remain unaddressed
• Sentenced admissions to prison have halved
• More than half of people in prison not sentenced
have been held for more than 90 days
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