1. Crown Prosecution Service (CPS)

2. CPS  http://www.cps.gov.uk/education/11- 18/decision-to-charge.html http://www.cps.gov.uk/education/11- 18/decision-to-charge.html

3. History of the role of the CPS  Until 1986, England and Wales was one of the few countries which allowed the police to prosecute.  The Crown Prosecution Service (CPS) was established by the Prosecution of Offences Act (POA) 1985.  The move to establish a CPS was precipitated by a report from the Civil Liberties Group JUSTICE in 1970.

4. The Prosecution Process in England and Wales 1970.  This is the JUSTICE report on 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 when the evidence was weak (Prosecution bias).  They were also not best placed to consider the public policy aspects of the discretion to prosecute.  Conflict of interest  Potential infringement of right to fair trial.

5. Philips Royal Commission 1978 on Criminal Procedure  The commission proposed a new system based on several distinct features, including the following:  the initial decision to charge a suspect should rest with the police.  Thereafter all decisions as to whether to proceed, alter or drop the charges should rest with another state prosecuting body.  This new agency would:  Provide advocates for all cases in the magistrates courts, apart from the guilty pleas by post.  Provide legal advice to the police.  Instruct counsel in all cases of an indictable offence.

6. Establishment of the CPS  The Prosecution of Offences Act 1985 established the CPS.  It is a national prosecution service under the general direction of the Director of Public Prosecutions (DPP), currently Keir Starmer, he is answerable to the Attorney General.  It has five main roles:  Advise police on the charge that should be brought against the suspect using the CPS Charging Standards.  Review cases that police present to them.  Prepare cases for court.  Present cases in court.  Their main role is to decide whether to bring a prosecution against the suspect.

7. Cont…  There are 42 areas in the UK to correspond with the police forces and each area is headed by a Chief Crown Prosecutor. Each of the 42 areas is split into branches, and each branch is headed by a Branch Crown prosecutor.  A 43 rd area is also sometimes referred to; this is CPS DIRECT which provides an out of hours service to the police.on charging advice.  In 2008-09, 80.7% of cases dealt with by the cps resulted in conviction

8. Composition of the CPS.  As employed solicitors or barristers,  Crown prosecutors were 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 a higher court is able to do so.  This involves having rights of audience as a  barrister  or solicitor advocate.

9. Criticisms of the CPS  In the period following its launch, the CPS experienced severe problems of staff shortage, relating to general funding of the service.  This however did improve over the years and by 1993 the full lawyer staff establishment had almost been met.  It was apparently difficult to  to recruit staff of an adequate standard for the available pay  to compensate for this there has been considerable use of agents  that is lawyers in private practice employed by the CPS for a fee for case basis.

10. Criticisms of the CPS  Since its inception, the CPS was criticised for a variety of alleged faults.  Inefficient  Low success rate in prosecutions.  Doubts about the rigour in which the cases were handled.  The Bar Council passed a motion in 1993.  Condemning the CPS for being to ready to abandon cases “fearing defeat or cost”.

11. Answering the Critics  Former Director of Public Prosecutions (DPP), Barbara Mills QC, who headed the CPS until April 1998, laid much of the responsibility for poor conviction rates on the door of the police.  She claimed that  80% of all cases dropped in the magistrates court and over 8,000 cases dropped in the Crown Court in 1992- 1993,  was due to lack of proper preparation by the police.  She further claimed that in 25% of cases that had to be dropped, CPS Lawyers had no option  because witnesses were missing or refused to give evidence.  Or the case was being considered elsewhere so the double jeopardy rule applied.

12. Answering the Critics.  In 1992 - 1993 the CPS commissioned a survey of 10,000 cases that it had to drop during that period. The results show:  43% were abandoned on the grounds of insufficient evidence for a conviction.  31% were abandoned because it was not in the public interest to proceed.  Much criticism has come from police officers who object to the CPS continuing not to pursue these cases for the above reason.

13. Glidewell Report 1998/9  A highly critical report published by a review body headed by Sir Ian Glidewell in June 1998 concluded:  that the CPS had failed to achieve the expected improvements in the prosecution system since it was set up in 1986.  It had become  bureaucratic  and over centralised.  The report depicted a service where charges were thought to be  inappropriately downgraded.  And a disproportionately large number of serious violent offences were not prosecuted.

14. Re-Organisation  As a result of the Glidewell Report, the CPS underwent a major structural re-organisation in 1999.  Its operations were de-centralised so as to realign the CPS areas to match the boundaries of the Police Forces.  There were originally 13 CPS areas there are now 42 to match the 43 police forces of England and Wales. (London has 2 Police Forces).  New Chief Crown Prosecutors (CCPs) for the 42 areas were appointed in 1999.  The CCPs will be accountable to the local communities and according to the CPS:  will enable good working relationships with other agencies in the criminal justice system;  courts  police  judiciary.

15. Code for Crown Prosecutors  The full code test:  It is based on two aspects;  Evidential Test is there a realistic prospect of conviction?  Public interest test is it in the public interest to prosecute?  A case has to pass the evidential test before it moves onto the public interest test; if it fails the evidential test, then the case will proceed no further.

16. Evidential Test  This requires the prosecution to predict what a jury or bench, properly directed, would be likely to decide.  Prosecutors must:  assess the reliability of witnesses  assess the reliability of the other evidence  asses whether the evidence is admissible.  It has been argued that the test favours those people in the community who are well respected.  Such as Police officers, businessmen, professionals.  In whose favour a jury or magistrates might be biased.  It disfavours the sorts of victims who are unlikely to make good witnesses.

17. Evidential  Unreliable evidence:  Blurred CCTV  Confession obtained by oppression  Hearsay  Eyewitness testimony of a child  Damilola Taylor – unreliable witness and inadmissible evidence made the question of an investigation.  Reliable Evidence:  DNA  Voluntary confession  Eyewitness from the scene of a crime.

18. Public Interest Test  The Code lists some “public interest” factors in favour of and against prosecution.  In favour of prosecution:  a conviction is likely to result in a significant sentence.  A weapon was used or violence was threatened.  Offence committed against a person serving the public.  Police officer, nurses, teachers etc  The offence, though not serious, is widespread in a particular community.  Offence was carried out by a group.  Offence was motivated by any form of discrimination.

19. Public Interest Test  Factors against Prosecution:  The suspect has put right the loss or harm that was caused.  The offence was committed as a result of a mistake or genuine misunderstanding.  The suspect played a minor role in the commission of the offence.  Keir Starmer has made the statement that it will nearly always be in the public interest to prosecute in cases of assisted suicide. This was highlighted after the cases of Kay Gilderdale and Francis Inglis ; two mothers who were both prosecuted for helping their offspring to die in very different circumstances. The DPP later published guidelines giving factors or and against prosecution in these cases.

20. Threshold Test  There are occasions hen the CPS decides that the Full Code Test has failed, and there is not enough evidence to charge, but there is still the belief that the suspect is too much of a risk to be released. In these cases, the CPS will apply the threshold test. Will a suspect be charged? Is there realistic prospect of conviction? Is there a reasonable suspicion that the person arrested has committed the offence in question?

21. Cont..  If both parts of this test are satisfied, then the CPS will then go on to apply the public interest test contained in the Full Code Test.

22. Independence of the CPS  The CPS was initially set up to be independent from the police.  The police are no longer a client-lawyer relationship with prosecutor able to give instructions about how to proceed.  The Police are still in the most influential position  it is only when the police takes the decision to charge a suspect will the CPS be called on to look at the case.  The CPS in practice exercises no supervisory role over the police investigation,  it simply acts on the file presented after the investigation of the police.  The power of the CPS to discontinue or withdraw prosecutions is an important feature of its Independence.

23. Independence of the CPS  However, many believe the CPS played a subordinate and reactive role in respect of the police, during a prosecution.  The Report by the Runcimann Royal Commission in 1993  recommended that the CPS should play a greater role in the investigative process.  “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 Glidewell Committee in 1998 recommended that the CPS should take responsibility for the prosecution process immediately following charge.

24. Criminal Justice Units  The Narey Report (narey review 1998) into delay in the criminal justice system suggested that the CPS staff should work in police stations in order to prevent delay.  During 1998 and 1999 pilot schemes known as Criminal Justice Units were run in six Police areas.  Review and evaluation of the pilot schemes suggested that they helped prevent delay and also created better working practices between the police and the CPS.  As a result fewer cases were discontinued;  7% in the pilot scheme areas as opposed to 12 – 14% nationally.  Criminal Justice Units now operate in all areas of the country.  There is also a CPS Direct, which is an out of hours telephone service and allows for experienced prosecutors to work from home, providing police with charging advice on a 24 hour basis.

25. Independence of the CPS  A Glidewell Working Group in 2001 found that Criminal Justice Units  improved communications between the services (police & CPS).  Speeded up notification of discontinuances.  Improved notification of case results to victims and witnesses.  Freed up staff to take on additional functions.  Established single contact point for the public on a prosecution in the Magistrates Court.  Oddly, however, the rationale underlying the establishment of the CPS (independent of the police) appears to have been undermined by the pilot scheme initiatives.

26. Independence of the CPS  As previously stated 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.  As full time salaried lawyer working for an organisation, CPS lawyers will sometimes be tempted to get a conviction using  dubious tactics or ethics  because their own status as employees and prospects of promotion will depend on conviction success rates.  Where if barristers from the Bar are used by the CPS to prosecute, there is a greater likelihood of the courtroom lawyer dropping a morally unsustainable case.  The Bar is also weary of this change  “..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.”

27. Reforms  Macpherson Report 1999  This report criticised the police for being institutionally racist. Every police force is now under a legal obligation to publish a Racial Equality Policy to protect victims and defendants. Regular inspections are also carried out.

28. Reforms  Auld Review 2001  This recommended the introduction of Statutory Charging – the CPS now determines the charge that should be brought in all but the minor cases. This will reduce the number of cases that are discontinued.  This was later implemented in the CJA 2003

29. Reforms  Abu Hamza – this case involved a Muslim cleric who was jailed for inciting murder and racial hatred. The police complained on several occasions that they had put evidence before the CPS and they had continually refused to prosecute. This suggests that working relationships between the police and the CPS are still hostile.

30. 2009 – The Public Prosecution Service – Setting the Standard  This is a report published by the DPP, Keir Starmer on his ‘vision’ for the CPS going into the 21 st century.  He set out 3 main aims:  Protect the public  Support victims and witnesses  Deliver justice

31. Cont..  He sees the CPS being able to achieve these aims by:  Addressing offending and using out-of- court disposals where appropriate.  Taking the views of the victim into account.  Taking decisions independently of any improper influence.  Ensure reliability of witnesses.

32. Stretch and Challenge  In 2010, Gwent CPS received a visit from the CPS inspectorate - Do you think their findings are reflective of an improved service, or are we still seeing the problems identified by Glidewell?  It’s not only the CPS that can charge a suspect; individuals are able to bring a private prosecution. Research the limitations on private prosecutions, paying particular attention to the case of Whitehouse v Lemon 1976.

33.  The DPP published guidelines on shaken baby cases in February 2011 because of the difference in opinion among medical experts. – Do you think it is always going to be in the public interest to prosecute in these cases because of the debate?