THE CRIMINAL PROCESS: (2) THE PROSECUTION


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THE CRIMINAL PROCESS:
(2) THE PROSECUTION8


8.1 INTRODUCTION


The classification of offences and matters relating to transfers for trial, summary trial, and trial on indictment, are dealt with in Chapter 6.


Until 1986, England was one of only a few countries that allowed the police to prosecute rather than hand over this task to a State agency like the office of the district attorney in the United States, or the procurator fiscal in Scotland (an office established in the fifteenth century). The Crown Prosecution Service (CPS) was established by the Prosecution of Offences Act (POA) 1985. As a result the police now play only a limited part in prosecutions beyond the stage of charging the suspect. It is a prosecutor who takes the charging decision, though their decision may be – and invariably is – informed by representations from the relevant officer, who is the Custody Officer involved with a case. The Custody Officer must determine, to the satisfaction of the Crown prosecutor reviewing the case, that there is sufficient evidence to charge a person with an offence. That officer must do this in accordance with the Threshold Test as to evidential sufficiency. Formerly, police officers alone had decided what charge, if any, was appropriate on the basis of the evidence in a case. The principle now prevailing is that Crown Prosecutors – not the Custody Officer – will determine whether a person is to be charged in all indictable only, either way, or summary offences, subject to those cases specified in this Guidance which the police may continue to charge. The rationale is that the decision as to charge is a distinctly legal one, given the requirement to consider and apply the law as to the seriousness of the alleged offence (see the guidance of the Director of Public Prosecutions on charging (4th edn, January 2011), issued under s 37A of the Police and Criminal Evidence Act 1984, www.cps.gov.uk/publications/directors_guidance/dpp_guidance_4.html).


However, the tide may be set to turn on this arrangement. Two London boroughs, Barking and Dagenham, and Havering, are piloting a new initiative to test the return of some charging decisions from the Crown Prosecution Service (CPS) to the police as part of the CPS ‘Modernising Charging’ programme, as announced in May 2004: lcjb.cjsonline.gov.uk/area23/library/Briefing%20Notes/ModernisingCharging2BN.pdf. In May 2011 the Home Secretary announced that the Home Office will pilot doubling the number of charges transferred to the police from the CPS, making them responsible for 80 per cent of charging decisions, including shoplifting cases. This is a drive to cut ‘red tape’ in response to Jan Berry’s report on Reducing Bureaucracy in Policing (available at www.policesupers.com/uploads/news/reducing-bureaucracy-policing.pdf), and the Home Secretary hopes that the pilot will save 2.5 million police hours per year (see Catherine Baksi’s article in the Law Gazette on 9 May 2011: www.lawgazette.co.uk/news/charging-powers-passed-cps-police).


There used to be five different forms of prosecution, those by:


the police, who prosecuted most offences;


the Attorney General/Solicitor General, whose permission was needed to prosecute for many serious crimes and who could enter a nolle prosequi to stop certain prosecutions or give a fiat to disallow them from the beginning;


the Director of Public Prosecutions (DPP), who prosecuted in very serious cases and cases brought to him by the government;


public bodies like local authorities. These used to amount to about 25 per cent of all prosecutions, most having been brought by the Post Office for television licence offences;


private prosecutions, which involved having to persuade a magistrate of the propriety in issuing a summons. The Attorney General and the DPP both had the power to take over a private prosecution and then drop it for reasons of public policy. Private bodies like stores and the RSPCA most regularly brought prosecutions. A study in 1980 showed that only 2.4 per cent of prosecutions were private (Lidstone, Prosecutions by Private Individuals and Non-Police Agencies (1980)). The right to bring private prosecutions was retained by s 6(1) of the POA 1985.


Today, the first three of the above list are conducted by the CPS. This chapter examines the workings of the State prosecution service.


8.2 THE CROWN PROSECUTION SERVICE


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.


The question was referred to the Philips Royal Commission on Criminal Procedure, which judged the then existing system according to its fairness, openness and accountability. It proposed a new system based on several distinct features, including the following:


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.


As employed solicitors or barristers, Crown prosecutors were originally unable to conduct cases in the higher courts. Changes to the rules on rights of audience in the higher courts for employed lawyers, introduced by the Access to Justice Act 1999, now permit them to do so. Consequently, any Crown prosecutor who is qualified to appear before the higher courts is able to do so. At the end of March 2011, the CPS employed around 7,746 people. It prosecuted 840,983 cases in the Magistrates’ Courts and 116,898 in the Crown Courts, with an overall conviction rate of 86 per cent in 2010–11. Over 91 per cent of all staff are engaged in, or support, frontline prosecutions. The CPS has 945 prosecutors able to appear in the Crown Court and on cases in the Higher Courts (Annual Report and Resource Accounts 2010–2011, Crown Prosecution Service). In October 2010, the CPS identified a new strategy for enhancing its role as ‘an independent prosecution service that delivers a valued public service’ (www.cps.gov.uk/publications/reports/2009/resource_accounts.html). Within this new strategy, there are five strategic objectives contained in what the CPS has billed its ‘business plan’:


Focus the CPS’s support to victims, witnesses and communities.


Embed its advocacy strategy.


Improve performance in the magistrates’ courts.


Ensure that CPS people are well led, managed and engaged.


Contribute to the wider Criminal Justice System.


Additionally, changes to the POA 1985, introduced by the Crime and Disorder Act (CDA) 1998, permit some lower court work to be undertaken by designated caseworkers, called Associate Prosecutors, who are not Crown prosecutors. To be able to do so, they must have undergone specified training and have at least three years’ experience of casework or have a legal qualification. They are able to review and present straightforward magistrates’ court cases, which raise no technical issues and which are uncomplicated in terms of fact and law. Essentially, this involves cases where there is an anticipated guilty plea, bail applications, or minor road traffic offences where the proof in absence procedure is used. They cannot deal with cases such as indictable-only offences, contested trials, where there is election for jury trial, and cases which raise sensitive issues. In 2007/08, Associate Prosecutors dealt with 20.4 per cent of magistrates’ courts’ sessions. This was a significant increase on the figure of 14.7 per cent for 2006/07 (www.cps.gov.uk/careers/other_legal_professionals/associate_prosecutor/).


From its inception, the CPS was criticised for a variety of alleged faults, principally that it was inefficient and had a low success rate in prosecutions. Many police officers expressed doubts about the rigour with which cases were handled by the CPS, and dubbed it the ‘Criminal Protection Society’. The Bar Council passed a motion in 1993 condemning the service for being too ready to abandon cases ‘fearing defeat or cost’. (On ‘fearless advocacy,’ see the Bar’s Code of Conduct, produced by the Bar Standards Board, 8th edn., in force 31 October 2004. See the full text of the Code, hosted by the Bar Standards Board at www.barstandardsboard.org.uk/standardsandguidance/codeofconduct//). Significant changes have been made to the Code of Conduct in 2010. At para 303(a) of the Code, it is stated that a barrister ‘must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person …’. (See, also, the 2010–11 Bar Handbook, setting out guidance as to ‘a barrister’s professional obligations, parameters of work, permitted charging arrangements, ability to get paid, getting redress when not paid, tax and VAT liabilities, insurance, practice planning and good practice advice, and relevant statutory and regulatory references, for all barristers be they self-employed or sole practitioners, employed, publicly or privately funded’, www.barcouncil.org.uk/memberservices/BarHandbook2010-11/.) In terms of proportions, the rate of convictions appeared to have levelled between 2008/09 and 2009/10, but it has grown significantly in 2010/11. At the close of January 2011, the conviction rate was 86 per cent, compared with 80.7 per cent in 2009/10 and 80.9 per cent in 2008/09. In previous years, the rate was 76.7 per cent in 2005/06, 77.3 per cent in 2006/07, and 79.3 per cent in 2007/08 (Annual Report and Resource Accounts 2010–2011, Crown Prosecution Service, www.cps.gov.uk/publications/reports/2010/index.html).


There are currently 42 areas into which the Crown Prosecution Service is divided, not including the specialised casework handled by the central Casework Divisions. During 2010/11, 67.8 per cent of defendants pleaded guilty in the Magistrates’ Court and 72.5 per cent pleaded guilty in the Crown Court (Annual Report and Resource Accounts 2010–2011, Crown Prosecution Service). In terms of magistrates’ casework, the number of defendants prosecuted by the CPS fell by 6.0 per cent during 2009/10 and by a further 3.6 per cent in 2010/11. The CPS has identified that ‘several factors may affect this figure, including the number of arrests, the impact of the early involvement of prosecutors, the number of offences cleared up by the police, and the number of offenders cautioned by the police’. Moreover, ‘the present fall in caseload may also be related to lower levels of recorded crime, and to the increased number of comparatively minor offences now dealt with by way of a fixed penalty without CPS involvement’. Contrasting with this drop in the prosecution of defendants in summary matters, the number of defendants prosecuted for indictable or either way offences increased by 6.1 per cent during 2010/11 (www.cps.gov.uk/publications/reports/2010/index.html).


8.2.1 THE CODE FOR CROWN PROSECUTORS


This Code is issued under s 10 of the POA 1985. The Code was substantially reviewed in February 2010 by Keir Starmer QC, the Director of Public Prosecutions. The Code can be viewed in full at www.cps.gov.uk/code. At the time of introducing the recent revisions to the Code, Keir Starmer QC said (www.cps.gov.uk/westmidlands/cps_west_midlands_news/new_code_for_crown_prosecutors_issued/):



The Code is a core document for the Crown Prosecution Service (CPS) and an invaluable tool for ensuring that the right principles are applied fairly and consistently when making our decisions in every case. These changes will help everyone understand how prosecutors make decisions, underpinning our commitment to openness at every stage of the prosecution process.


[…]


The role of the prosecutor is constantly evolving. The CPS and the Revenue & Customs Prosecutions Office recently merged and we are liasing much more closely with our local communities. It is critical that the Code is kept as relevant and clear as possible to assist prosecutors in their increasingly diverse roles and specialties.


The issue of the new Code reflects changes to legislation and practice since the previous Code was issued in 2004. Changes to the Code are intended to set out more clearly the principles that prosecutors must follow when they decide whether or not to prosecute. Those guiding principles include:


a clearer explanation of the public interest factors tending in favour and against prosecution;


a clearer explanation of how the public interest stage of the Full Code Test is applied;


prosecutors having a discretion to stop a prosecution in the public interest, in exceptional circumstances, before all of the evidence is available;


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:



It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution [House of Commons Debates, vol 483, col 681, 29 January 1951].


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 Home Office provided guidance on when to caution in 1990 and 1994 (see Home Office Circulars 1990/59 and 1994/18). Further guidance has since been supplied in February 2007, by way of the 3rd edition of the Director of Public Prosecutions guidance to police officers and Crown prosecutors as to charging practices (www.cps.gov.uk/publications/directors_guidance/dpp_guidance.html#_09; see also the factsheet on charging decisions available at www.cps.gov.uk/news/fact_sheets/decision_to_charge/). In overview, a system of cautions, reprimands and final warnings has been instituted as a mechanism of diverting from prosecution. Where the police consider that the Threshold Test is met in a case, a caution, may be appropriate in the case of adults. Other than an indictable only offence, a caution may be an appropriate, proportionate means of disposal by way of diversion from prosecution. This is conditional on the police having determined that it is in the public interest to administer a simple caution. In such cases, the police may issue that caution, reprimand or final warning as appropriate, without referring the case to a Crown Prosecutor. In the case of youths, the police may administer a reprimand or final warning (www.cps.gov.uk/publications/directors_guidance/dpp_guidance.html#_09).


A caution is not a conviction, but, if put as a formal caution, it remains on an offender’s record for a minimum of five years and may be used at the sentencing stage if he is subsequently convicted of another offence. A caution must be administered by an officer of the rank of inspector or above, and attendance at the police station is usually required. Three conditions must be met:


There must be sufficient evidence to have justified a prosecution.


The offender must admit guilt.


The offender must agree to the procedure.


Cautioning may be particularly appropriate where an offender is old or infirm, mentally ill, suffering from severe physical illness, or suffering from severe emotional distress.


It may also be considered appropriate to give a conditional caution. Unlike the simple caution, the decision whether or not to offer a conditional caution can only be taken by a prosecutor either as part of the statutory charging process or on review of a case charged by the police (see below).


Reprimands and Warnings for Young Offenders

Sections 65–66 of the CDA 1998 introduced a new scheme that includes police reprimands and warnings, accompanied by intervention to reduce the likelihood of reoffending. A first offence can result in a reprimand, final warning, or criminal prosecution, depending on its seriousness. A further offence following a reprimand will lead to a warning or a charge. A further offence after a warning will normally lead to a charge, a second warning only being possible in limited circumstances where the latest offence is not serious and more than two years have elapsed since the first warning was given. Reprimands and warnings will be issued at a police station and a police officer may only issue them either where:


there is sufficient evidence for prosecution;


guilt is admitted;


there are no previous convictions; or


prosecution is not in the public interest.


After a warning has been issued, the young offender will be referred to a youth offending team (as established by s 39 of the CDA 1998), which will assess the offender to determine whether a rehabilitation programme to prevent reoffending is appropriate, and to provide one where it is. Conditional discharge of a young offender who commits an offence within two years of receiving a warning is not possible unless there are exceptional circumstances relating to the offence or the offender. Any reprimand, warning or recorded noncompliance with a rehabilitation programme may be cited in court in the same way as previous convictions.


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 revised Code issued in 2004 requires two tests to be satisfied before a prosecution is brought: there must be a ‘realistic prospect of conviction’ (the evidential test); and the prosecution must be ‘in the public interest’. The further revised Code (February 2010) does not change the operation of this two-stage approach but serves to clarify what constitutes ‘the public interest’ in this context.


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 police should seek the advice of the CPS at the investigation stage in appropriate cases in accordance with guidelines to be agreed between the two services.


The Report also stated (para 95):



Where a chief officer of police is reluctant to comply with a request from the CPS to investigate further before a decision on discontinuance is taken, HM Chief Inspector of Constabulary in conjunction with the Director of Public Prosecutions should bring about a resolution of the dispute.


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.


These recommendations were put into effect in six pilot areas. A report by the Glidewell Working Group in February 2001 found that, following a study carried out in September and October 2000, the recommendations had important effects, in that they:


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:



For instance, it is for the Commissioner of Police of the Metropolis, or the Chief Constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him directions on such a matter.


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)).


An interesting instance of the courts being used to attack a use of police discretion is R v Coxhead (1986). The appellant was a police sergeant in charge of a police station. A young man was brought into the station to be breathalysed and the sergeant recognised him as the son of a police inspector at that station. The sergeant knew the inspector to be suffering from a bad heart condition. In order not to exacerbate this condition, the sergeant did not administer the test and allowed the motorist to go free. The sergeant was prosecuted and convicted for conduct tending and intended to pervert the course of justice. The sergeant’s defence was that his decision came within the legitimate scope of discretion exercised by a police officer. The trial judge said the matter should be left for the jury to determine; they must decide the extent of any police discretion in accordance with the facts. The jury convicted the sergeant and his conviction was upheld by the Court of Appeal. In minor cases, the police had a very wide discretion whether to prosecute, but in major cases they had no discretion or virtually none. Thus, in a serious case like drink-driving, there was no discretion which the sergeant could have been exercising legitimately. It is odd, however, that this is left for the jury to decide after the event rather than being subject to clear rules to anticipate the proper exercise of police discretion.


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:



it is apparent that the law has not been properly understood and applied (R v DPP, ex p Jones (Timothy) [2000]);


it can be demonstrated on an objective appraisal of the case that some serious evidence supporting a prosecution has not been carefully considered (R (on the application of Joseph) v DPP [2001]); R (on the application of Peter Dennis) v DPP [2006]);


it can be demonstrated that in a significant area a conclusion as to what the evidence is to support a prosecution is irrational (R v DPP, ex p Jones (Timothy) [2000]);


the decision is perverse, that is, one at which no reasonable prosecutor could have arrived (R v DPP, ex p C [1995]);


CPS policy, such as that set out in the Code for Crown Prosecutors, has not been properly applied and/or complied with (R v DPP, ex p C [1995]; R v DPP, ex p Manning [2001]; R v Chief Constable of Kent, ex p L ; R v DPP, ex p B (1991));


the decision has been arrived at because of an unlawful policy (R v DPP, ex p C [1995]);


it can be demonstrated that the decision was arrived at as a result of fraud, corruption or bad faith (R v DPP, ex p Kebilene [2000]; R v Panel on Takeovers and Mergers, ex p Fayed [1992]).


8.2.7 STATE PROSECUTORS IN THE CROWN COURTS


Reference has already been made to the fact that Crown prosecutors are now able to appear in the higher courts if they are suitably qualified. This has caused a great deal of concern in some quarters. The basis of the worry is that, as full-time salaried lawyers working for an organisation, CPS lawyers will sometimes be tempted to get convictions using dubious tactics or ethics because their own status as employees and prospects of promotion will depend on conviction success rates. Where, as now, barristers from the independent Bar are used by the CPS to prosecute, there is (it is argued) a greater likelihood of the courtroom lawyer dropping a morally unsustainable case.


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 CPS as an organisation is constantly under pressure in regard to the proportion of discontinuances, acquittal and conviction rates. These are factors in the day-to-day work of any CPS lawyer. It is disingenuous to imagine they will not have a powerful effect on decision making.


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



[…] we are gravely concerned about the extent to which prosecutions will be done in-house by the CPS when the need for independent prosecutors is so well established in our democracy [(1999) Counsel 3, February].


It is important to set the arguments in a wider context. What are the social, economic or political debates surrounding this issue of how best to run a system of courtroom prosecutors? The change to having Crown Court prosecutions carried out by salaried CPS lawyers might well be expected to be more efficient, as the whole prosecution can be handled in-house, without engaging the external service of an independent barrister. This assumption has recently been discredited, however: CPS in-house cases are in fact more expensive to run than instructing chambers-based barristers (see website of the Bar Council, 27 July 2009: ‘Independent Study Heavily Criticises CPS Claims about In-House Advocates are Based on “Alice in Wonderland Accounting”’). Some will argue that justice is being sacrificed to the deity of cost-cutting. On the other hand, it could be argued that justice and efficiency are not mutually exclusive phenomena and – as has been shown above – the CPS has been actively recruiting HCAs to prosecute in the Crown Court. Keir Starmer QC, the Director of Public Prosecutions, has committed himself to the view that ‘in-house advocacy is here to stay for the CPS’ (9 January 2009). However, the real term costs of Higher Court Advocates (HCAs) has been effectively queried, with recent Bar Council meetings discussing the relative expense of independent and in-house barristers (www.barcouncil.org.uk/aboutthebarcouncil/meet-ings/minutes/BarCouncilMeeting17July2010/). This has culminated in a turf war between in-house CPS advocates and independent practitioners at the Bar. (See the article by Frances Gibb, ‘Bar Council says Crown Prosecution Service wasting millions with in-house prosecutions’, 27 July 2009, The Times (business.timesonline.co.uk/tol/business/law/article6728772.ece). See also the annual report for 2010 of the Chairman of the Criminal Bar Association, Paul Mendelle QC: www.criminalbar.com/86/records/376/Chairmans%20Report%20for%20the%20CBA%20June%202010.pdf.) It remains to be seen what effect the new CPS Panel Advocate Scheme (commencing in autumn 2011) will have on this debate.


8.3 BAIL


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).


In 2008, it was revealed that nearly one in seven people charged with murder and awaiting trial was released on bail. A survey by the Courts Service disclosed that at least 60 of the 455 people accused of murder were on the streets on 31 January 2008, while 35 out of 41 of those awaiting trial for manslaughter were bailed. (That survey has not been updated.) The disclosure came after Gary Weddell murdered Traute Maxfield, his mother-in-law, before killing himself. At the time, he was on bail charged with the murder of his wife (The Times, 25 February 2008). The Coroners and Justice Act 2009 has since reformed the law relating to the application and grant of bail. In particular, s 115 of that Act provides that a defendant who is charged with murder (and other offences) may not be granted bail except by a judge of the Crown Court. The power of magistrates to consider bail in murder cases – whether at the first hearing or after a breach of an existing bail condition – is thus removed. A bail decision in such cases must be made as soon as reasonably practicable. In any event, a decision must be made within 48 hours (excluding public holidays), beginning the day after the defendant’s appearance in the magistrates’ court.


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.


Each year prior to the Acts, about 50,000 offences were committed by people on bail. A study by the Metropolitan Police in 1988 indicated that 16 per cent of those charged by that force were already on bail for another offence. Another study in 1993, from the same force, showed that, of 537 suspects arrested in one week during a clamp-down on burglary, 40 per cent were on bail. Some had been bailed 10 or 15 times during the preceding year (figures from Robert Maclennan MP, HC Committee, col 295, 1994). A recent survey revealed that males in prison for motor vehicle theft who had previous experience of bail claimed on average to have committed a similar offence each month while on bail (Justice for All, Cm 5563, 2002, The Stationery Office).