THE CRIMINAL PROCESS: (2) THE PROSECUTION

THE CRIMINAL PROCESS:
(2) THE PROSECUTION8

The move to establish a CPS was precipitated by a report from JUSTICE, the British section of the International Commission of Jurists, in its 1970 Report, The Prosecution Process in England and Wales. It argued that the police were not best suited to be prosecutors because they would often have a commitment to winning a case even where the evidence was weak, given the investment in a case that its investigation invariably represents. They were also not best placed to consider the public policy aspects of the discretion not to prosecute. The police were firmly opposed to such a change. They argued that statistics showed that the police were not given to pursuing cases in a way that led to a high rate of acquittal. They also showed that in cases involving miscarriages of justice, the decision to prosecute had been taken by a lawyer.

• that the initial decision to charge a suspect should rest with the police;

• that thereafter all decisions as to whether to proceed, alter or drop the charges should rest with another State prosecuting agency;

• this agency would provide advocates for all cases in the magistrates’ courts apart from guilty pleas by post. It should also provide legal advice to the police and instruct counsel in all cases tried on indictment.

The POA 1985 established a national prosecution service under the general direction of the DPP. The 1985 Act gives to the DPP and the CPS as a whole the right to institute and conduct any criminal proceedings where the importance or difficulty of the case make that appropriate (s 3(2)(b)). This applies to cases that could also be started by the police or other bodies like local authorities. It can also, in appropriate circumstances, take over and then discontinue cases. The CPS relies on the police for the resources and machinery of investigation.

In the period following its launch, the CPS experienced severe problems of staff shortage related to the general funding of the service. This improved over the years, and by March 1993, the full lawyer staff quotient had almost been met. It was apparently difficult to recruit staff of an adequate standard for the available pay and there has been considerable use of agents, that is, lawyers in private practice working for the CPS on a fee-for-case basis.

• a fuller section explaining the use of out-of-court disposals for both adults and youths;

• prosecutors being able to conduct pre-trial witness interviews when it is needed to assess the reliability of witness evidence or better understand complex evidence.

8.2.2 THE DISCRETION TO PROSECUTE

The police have a very significant discretion as to what to do when a crime has possibly been committed. They could turn a blind eye, caution the suspect or charge the suspect, in which case they must decide what is the most appropriate charge or charges commensurate with the facts and seriousness of the alleged conduct. Environmental health officers, the Health and Safety Executive, and the Environment Agency inspectors, as officers statutorily charged with investigative powers, are in a similar position.

As is very cogently argued by McConville, Sanders and Leng in The Case for the Prosecution (1991), prosecution cases are constructed from the evidence and testimony of many people including lay witnesses, victims, the police, CPS lawyers and expert witnesses. Each of these parties is fallible and prone to perceive events in line with their own sorts of experience. The net result of this is that the prosecution case is normally nothing more than an approximation of ‘the truth’. In crude terms, we move further towards an explanatory account if we understand truth as proof. In their preface to Reconstructing Reality in the Courtroom (1981), Bennett and Feldman asserted that: ‘the use of stories to reconstruct the evidence in cases casts doubt on the common belief about justice as a mechanical and objective process’. Stories, their argument runs, serve as tools in the task of selecting from a glut of information what material will in fact be presented as evidence. Bennett and Feldman also contend that narrative devices like stories also serve to plug gaps. William Twining has, however, doubted this account of the somewhat subjective cherry-picking of stories in putting together a case. In particular, Twining argues, facts in issue, materiality, relevance, burdens of proof, and presumptions, are peculiarly lawyer’s concepts. Coupled with these, he continues, is the advocate’s marshalling of ‘the theory of the case’ (see Twining’s Rethinking Evidence: Exploratory Essays, Cambridge University Press (Law in Context series), 2nd edn, 2006).

The most influential role in what can neutrally be put as the narrative of a case is that of the police, as it is they who ultimately decide whether to charge anyone, and if so, whom and for what. Once these discretions have been exercised, there is a relatively narrow band of data on which the CPS can work.

In 1951, the Attorney General, Lord Shawcross, noted that:

This dictum has been almost universally accepted within the criminal justice system.

There is evidence, however, that the police do (for operational or social reasons) tend to focus their attention on particular types of conduct. Research, for example, by Andrew Sanders has shown a tendency for there to be a bias in favour of prosecuting working-class offenders as opposed to middle-class offenders. He compared the police response to offences with that of the Factory Inspectorate’s response to violation of the health and safety laws, and found that the police were much more likely to initiate prosecutions against working-class suspects than were the factory inspectors against businesses and business executives. For the police, there was an institutional bias in favour of prosecution reflected in the principle ‘let the court decide’, whereas for the Factory Inspectorate, prosecution was a last resort pursued only after an attempt at negotiated compliance had failed. In 1980, there were 22,000 serious cases of tax evasion, but only one in 122 cases was prosecuted. By contrast, there were 107,000 social security frauds, of which one in four was prosecuted. Tax evasion resulted in a loss to the public purse 30 times larger than that caused by social security fraud, yet there was more State money spent on prosecuting people for social security fraud. (See Sanders, ‘Class bias in prosecutions’ (1985) 24 Howard J 176.) There is also evidence that the Environment Agency has a ‘bottom heavy’ enforcement policy, that is, it is more concerned to prosecute minor offenders than large companies. Anglers who catch fish without licences are far more likely to appear in court than the directors of companies that pollute the environment. (See P de Prez, ‘Biased enforcement or optimal regulation: Reflections on recent Parliamentary scrutiny of the Environment Agency’ (2001) 13(3) Environmental Law and Management 145–50.)

8.2.3 POLICE CAUTIONING OF OFFENDERS

Prior to changes introduced by the Crime and Disorder Act (CDA) 1998, cautioning of both adult and young offenders was a possible alternative to prosecution and was particularly encouraged in the case of the latter. Following implementation of the changes introduced by the 1998 Act, cautions are now available only for adult offenders, with a new system of reprimands and warnings applying to young offenders. The Criminal Justice Act 2003 introduced several changes in this area; these are addressed below.

Cautioning of Adults

The Criminal Justice Act 2003 and Changes to the System

The Criminal Justice Act 2003 made several changes to this area. The changes are in Part 3 of the Act.

Section 22: Conditional Cautions

Section 22 defines a conditional caution and provides that it may be given to an adult offender if the five requirements in s 23 are met. The conditions that may be imposed are restricted to those aimed at reparation for the offence, or at the rehabilitation of the offender. A conditional caution may be given by an authorised person as defined in sub-s (4).

Section 23: The Five Requirements

Section 23 sets out the requirements that need to be met for a conditional caution to be given. The requirements are: that there is evidence against the offender; that a ‘relevant prosecutor’ (as defined in s 27) considers that the evidence would be sufficient to charge him and that a conditional caution should be given; that the offender admits the offence; that the offender has been made aware of what the caution (and failure to comply with it) would mean; and that he signs a document containing details of the offence, the admission, the offender’s consent to the caution, and the conditions imposed.

Section 24: Failure to Comply with the Conditions

Section 24 provides that if the offender fails without reasonable excuse to satisfy the conditions attached to the conditional caution, he may be prosecuted for the offence. If proceedings are commenced, the document referred to in s 23 is admissible in evidence, and the conditional caution ceases to have effect.

Section 25: Code of Practice

This section makes provision for the Home Secretary, with the consent of the Attorney General, to publish a Code of Practice setting out the criteria for giving conditional cautions, how they are to be given and who may give them, the conditions that may be imposed and for what period, and arrangements for monitoring compliance.

8.2.4 CPS GUIDELINES

The Code for Crown Prosecutors (promulgated on behalf of the DPP) sets out the official criteria governing the discretion to prosecute.

The evidential test requires prosecutors to predict what a jury or bench, properly directed, would be likely to decide. The guidelines require prosecutors to assess the reliability of evidence, not just its admissibility, hence the questions (para 5.4b): ‘Is there evidence which might support or detract from the reliability of a confession? Is the reliability affected by factors such as the defendant’s age, intelligence or level of understanding?’

As Glanville Williams ([1985] Crim LR 115)) and Andrew Sanders ((1994) 144 NLJ 946) have argued, this test favours people who are well-respected in society – like police officers and businessmen – in whose favour juries and magistrates might be biased. It disfavours the sort of victims who are unlikely to make good witnesses. Sanders proposes a better test: whether, on the evidence, a jury or bench ought (on the balance of probabilities) to convict.

The public interest must be considered in each case where there is enough evidence to provide a realistic prospect of conviction. In cases of any seriousness, a prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour.

Announcing the revised Code that was published in 2004, the Attorney-General noted (Hansard, HL Deb, 16 November 2004 vol. 666 c50WS) that the fundamental evidential and public interest considerations remained the same as in the earlier 2001 Code. However, the Code was amended to reflect the then new role played by the Crown Prosecution Service in statutory charging, whereby Crown Prosecutors, rather than the police, normally decide whether or not to charge a suspect and determine the appropriate charge or charges. The new Code also reflected other key developments in the four years since its earlier iteration. These include: the developing role of prosecutors in assisting the sentencing court, and seeking post-conviction orders, such as anti-social behaviour orders; alternatives to prosecution, such as conditional cautioning; and public interest factors in favour of prosecution, relating to confiscation and any other orders, children, and community confidence.

The Code lists some ‘public interest factors in favour of prosecution’ (para 5.9) and some against (para 5.10). The former include cases where:

• a conviction is likely to result in a significant sentence;

• a weapon was used or violence was threatened during the commission of the offence;

• the offence was committed against a person serving the public, like a police officer or a nurse;

• the offence, although not serious in itself, is widespread in the area where it was committed;

• there is evidence that the offence was carried out by a group;

• the offence was motivated by any form of discrimination against the victim’s ethnic or national origin, sex, religious beliefs, political views or sexual orientation; or the suspect demonstrated hostility towards the victim based on any of those characteristics.

A prosecution is less likely to proceed, we are told (para 5.10), where (inter alia):

• the court is likely to impose a very small or nominal penalty;

• the offence was committed as a result of a genuine mistake or misunderstanding (judged against the seriousness of the offence);

• the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgment;

• a prosecution is likely to have a very bad effect on the victim’s physical or mental health, always bearing in mind the seriousness of the offence;

• details could be made public that could harm sources of information, international relations or national security.

Crown prosecutors and others must balance factors for and against prosecution, carefully and fairly. Deciding on the public interest is, the Code says (para 5.11), ‘not simply a matter of adding up the number of factors on each side’.

The Attorney General has commended the Code to prosecutors outside the CPS. This may help to correct inconsistent approaches between the police and CPS on the one hand and, on the other, prosecutors like HMRC and the Health and Safety Executive. As Sanders (see above) has observed, if you illegally gain a fortune or maim someone, you will probably be treated more leniently than ordinary disposals for such offences if the crimes are, technically, tax evasion and operating an unsafe place of work. Local authorities and the Environment Agency seem generally reluctant to prosecute environmental offenders. This can lead to a situation in which environmental crime, for example, makes good business sense. See M Watson, ‘Offences against the environment: the economics of crime and punishment’ (2004) 16(4) Environmental Law and Management 2003–04. For the Health and Safety Executive, see G Slapper, Blood in the Bank, (1999).

8.2.5 CPS INDEPENDENCE FROM THE POLICE

The CPS is institutionally separate from the police. The police are no longer in a client-lawyer relationship with the prosecutor, able to give instructions about how to proceed. The police are still, however, in the most influential position as it is only once they have taken the decision to charge a suspect that the CPS will be called on to look at the case. The CPS in practice exercises no supervisory role over the police investigation of cases; it simply acts on the file presented after the investigation by the police. It cannot instruct the police to investigate a particular incident.

The power of the CPS to discontinue prosecutions (under s 23 of the POA 1985), or the continuing power to withdraw or offer no evidence, is an important feature of its independence. However, McConville makes the argument that ‘[t]he system is dominated throughout its stages by the interests and values of the police, with the CPS playing an essentially subordinate and reactive role’ in The Case for the Prosecution (1991).

The Report of the Runciman Royal Commission on Criminal Justice (1993) recommended that the CPS should play a greater role in the investigative process. It stated (para 93):

The Report also stated (para 95):

Oddly, however, the rationale underlying the establishment of the CPS (independence from the police) appears to have been undermined since 1998, when many police stations have had CPS liaison officers working in the stations themselves.

Further evidence of encouragement of the relationship between the CPS and the police appears in the response to recommendations made by the Glidewell Committee in 1998. The Committee recommended that the CPS should take responsibility for the prosecution process immediately following charge. There should be a single integrated unit to assemble and manage case files, combining the current police Administrative Support Units and those parts of the CPS branch which deal with file preparation and review. The Committee proposed as a model a ‘Criminal Justice Unit’ in the charge of a CPS lawyer with mainly CPS staff, although many of these might be the civilian police staff currently employed in Administrative Support Units. The Committee suggested that such a unit would need to be able to call on the police to take action in obtaining more evidence. This would require that a senior police officer would need to be part of the unit, housed in or near the relevant police station. The unit would deal with fast track cases in their entirety and with simple summary cases, that is, with both the file preparation and the necessary advocacy. The CPS should primarily be responsible, in the magistrates’ courts, for the timely disposal of all cases prosecuted by its lawyers, and share with the court one or more performance indicators related to timeliness. The Committee recommended the formation of ‘trial units’ to deal with advocacy in some trials in the magistrates’ courts. This was also recommended for the management and preparation of all cases in the Crown Court. The intention was to lead to a shift in the centre of gravity of the CPS towards the Crown Court.

• eliminated unnecessary work through improved communications;

• speeded up notification of proposed discontinuance;

• improved notification of case results to victims and witnesses;

• freed up staff to take on additional functions;

• established a single contact point for the public on the prosecution of magistrates’ court cases.

8.2.6 JUDICIAL CONTROL OF PROSECUTION POLICY

There is a very limited way in which the courts can control the exercise of prosecutorial discretion by the police. Lord Denning MR gave the example in one case of a chief constable issuing a directive to his men that no person should be prosecuted for stealing goods worth less than £100 (around £2,000 at 2011 prices), and said ‘I should have thought the court could countermand it. He would be failing in his duty to enforce the law’. More generally, the courts had no control, per Lord Denning MR, R v Metropolitan Police Commissioner ex p Blackburn [1968] 1 All ER 763 at 769:

Apart from this, there is the doctrine of constabulary independence (see Fisher v Oldham Corp (1930)), which regards the constable as an independent office-holder under the Crown who cannot be instructed by organisational superiors or by governmental agency about how to exercise his powers. The constable is accountable only to law. The judiciary has shown a marked reluctance to interfere with decisions made by police chiefs concerning, in particular, the allocation of resources and direction of police officers (see Harris v Sheffield United Football Club Ltd (1987); R v Chief Constable of Sussex ex p International Trader’s Ferry Ltd (1997)).

It is possible to bring a judicial review of the decision to prosecute or not to prosecute. The courts are likely to direct the CPS to review its prosecutorial decisions where:

8.2.7 STATE PROSECUTORS IN THE CROWN COURTS

Section 42 of the Access to Justice Act 1999 tries to overcome any possible difficulties with a provision (amending s 27 of the Courts and Legal Services Act (CLSA) 1990) that every advocate ‘has a duty to the court to act with independence in the interests of justice’, in other words, a duty that overrides any inconsistent duty that might lie, for example, to an employer. Professor Michael Zander QC has contended, however, that these are ‘mere words’. He has said (letter to The Times, 29 December 1998) that they are unlikely to exercise much sway over CPS lawyer employees concerned with performance targets set by their line managers, and that:

The Bar is also very wary of this change, an editorial in Counsel (the journal of the Bar of England and Wales) saying:

Bail is the release from custody, pending a criminal trial, of an accused. The relevant statute is the Bail Act (BA) 1976. Bail may be with or without conditions. Conditional bail may granted, for example, on the promise that an accused will not contact witnesses or co-defendants in a case; that he will cooperate with probation or other State agencies; that he will adhere to reporting or so-called ‘doorstep’ or curfew conditions. Other conditions of remand on bail might include the promise that money will be paid to the court by a ‘surety’ (the person ‘standing’ the bail money) if he absconds. All decisions on whether to grant bail therefore involve delicate questions of balancing interests, but the exercise begins with the presumption that an accused should be at liberty until proven guilty. The test to be applied is a threshold one. Where there are ‘substantial grounds’ for believing that the exceptions to bail in the Bail Act 1976 are met, a court may be satisfied that deprivation of the liberty of an accused can be justified.

A person is presumed innocent of a criminal charge unless he is proved guilty of it; this implies that no one should ever be detained unless he has been found guilty. It follows that there is a presumption of liberty, which the prosecution may oppose only by establishing ‘substantial grounds’ to overturn that presumption. For several reasons, however, it can be regarded as undesirable to allow some accused people to go back to society before the case against them is tried in a criminal court. Indeed, about 12 per cent of offenders who are bailed to appear in court fail to appear for their trials. In January 2005, the Attorney General called for a crack-down on defendants who skip bail. At the time in question, 60,000 failed to appear (FTA) warrants were outstanding. Lord Goldsmith said: ‘They will see that they can’t thumb their nose at the criminal justice system. Turning up at court is not optional. It is a serious obligation and we will enforce it’ (C Dyer, ‘Bail bandits blitz begins today’, The Guardian, 14 January 2005).

To refuse bail to an accused might involve depriving someone of liberty who is subsequently found not guilty or convicted, but given a non-custodial sentence. Such a person will probably have been kept in a police cell or in a prison cell for 23 hours a day. Unlike the jurisdictions in the Netherlands, Germany and France, no compensation is payable in these circumstances. On the other hand, to allow liberty to the accused pending trial might be to allow him to abscond, commit further offences, interfere with witnesses and obstruct the course of justice. A suspected terrorist might commit further outrages (a controversial issue following the explosions in London on 7 July 2005).

The difficulties involved in finding the proper balance have been highlighted by several cases of serious assault and rape being committed by persons who were on bail, and by the fleeing of Asil Nadir to Northern Cyprus in May 1993. Mr Nadir skipped his £3.5 million bail to travel to a jurisdiction that would not extradite him to England. He claimed that he would not be given a fair trial for the offences of theft and false accounting with which he was charged, and went on the public record as saying that his sureties would not suffer hardship as he would repay those who had put up bail for him.

The basic way in which the law currently seeks to find the right balance in such matters is by operating a general presumption in favour of bail, a presumption that can be overturned if one or more of a number of indices of suspicion exist in respect of a particular defendant. Even where bail is granted, it may be subject to certain conditions to promote public safety and the interests of justice. The Criminal Justice Act 2003 makes several changes to the law of bail. All the changes are addressed in 8.3.3 below.

8.3.1 THE CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994

Over recent years, the government took the view that bail was too easily granted and that too many crimes were being committed by those on bail who ought to be in custody while awaiting trial. The Bail (Amendment) Act 1993 and the Criminal Justice and Public Order Act (CJPOA) 1994 (ss 25–30) emanate from that philosophy, their aim being to restrict the granting of bail. A case that caught public sympathy for this view involved a young man who had many convictions for car crime and joyriding. While on bail, he was joyriding in a vehicle when he smashed into a schoolgirl. She clung to the bonnet but he shook her off and thus killed her. The Home Secretary commented publicly that the new legislative measures would prevent such terrible events.