Supplementary note by the Crown Prosecution
Service
REPLIES TO THE COMMITTEE'S WRITTEN QUESTIONS
HUMAN RIGHTS
ACT: HAC FOLLOW
UP
1. What assessments have been made of the
possible challenges to the work of the CPS which might be brought
under the Human Rights Act, and what provision is being made to
address these.
1.1 The CPS identified at an early stage
the significance of the Human Rights Act upon our work as a prosecuting
authority, and since June 1997 has been pursuing an active programme
of work designed to prepare for implementation. We have been working
closely with others in the Criminal Justice System to assess the
potential impact of the Human Rights Act, and also to identifiy
measures that can be taken to ensure that we are fully prepared
for the implementation of the Act.
1.2 Our work has focused principally on
the need to prepare CPS staff for the efficient and effective
implementation of the Act, but has also encompassed those agencies
within the Criminal Justice System whose work necessarily affects
our own: e.g. the courts, the police, and the Bar. We have
worked with other agencies to raise awareness of the forthcoming
legislation and its implications, and continue to liaise in the
development of training materials and guidance which will underpin
preparations for the implementation of the Act in the context
of criminal work.
1.3 An Interdepartmental Working Group consisting
of representatives from the Lord Chancellor's Department, the
Home Office, the Treasury, the Legal Secretariat to the Law Officers,
and the CPS commenced work in October 1997 with the aim of examining
the potential impact of the Human Rights Act on the criminal justice
system. The work of the Group in considering the likely implications
for the criminal justice as a whole enabled the CPS to identify
particular issues which would need to be addressed in planning
for implementation.
1.4 It was recognised that it was not possible
to predict the exact impact with certainty, but based on our combined
experience of the criminal justice system, and the experience
of other jurisdictions, the broad conclusions of the Working Group
were:
— more elections for Crown Court trial,
wherever there is an arguable ECHR point;
— fewer guilty pleas in both the Crown
Court and the magistrates' courts, to test the new law;
— longer hearings as Convention points,
good and bad, are raised;
— more appeals, particularly judicial
review to obtain definitive rulings on ECHR arguments and to utilise
the declaration powers of the higher courts.
1.5 The findings of the Working Group were
taken forward in September 1998 in the context of the business
planning exercise to assess the practical options for the implementation
of the Act, having regard to other Government initiatives and
proposals. The CPS were represented on the Steering Group, and
provided information to assist in the overall assessment of the
effects of implementation.
1.6 This preliminary work on the broader
effects of Human Rights Act implementation upon the criminal justice
system has informed our assessment of the impact upon CPS, and
shaped our planning for implementation.
1.7 We formed an internal CPS ECHR Action
Group in late 1997 to explore the key issues that we would need
to address in our approach to preparing for implementation. With
the assistance of representatives from the Foreign and Commonwealth
Office on the broader aspects of ECHR law, this enabled us to
develop a fuller understanding of the likely ECHR issues for CPS,
and to formulate our plans to ensure that we were properly prepared.
The Action Group identified the following key issues that would
need to be addressed:
— as a preliminary step, to raise the
levels of awareness amongst CPS staff about human rights issues;
— provision of detailed and focused
guidance for staff on the implications of the Act;
— the review, and where necessary revision,
of existing internal guidance to ensure human rights principles
are taken into account;
— provision of training to ensure staff
are familiar with the principles to be applied when reviewing
and conducting cases following implementation;
— alerting key CJS partners, both nationally
and locally, to the implications of the Act, and working with
them to ensure that preparations are in hand to ensure effective
implementation.
1.8 Building on the work of this Group,
a detailed overall project plan was prepared in May 1998 covering
the actions needed to prepare for implementation. The main areas
of work cover the provision of guidance, and the preparations
for training.
1.9 CPS preparations for implementation
are proceeding as planned, and the overall timetable for guidance
and training on Human Rights issues is on target. Delivery of
the full training package commenced in January in the 42 CPS Areas,
and guidance materials to supplement the training have been printed
and distributed to all prosecutors and caseworkers.
1.10 Levels of awareness of staff to Convention
issues have been raised by a series of popular articles in in-house
journals, and every opportunity is taken to promote discussion
and thinking on human rights issues. A series of lunch time talks
by distinguished human rights speakers at London Headquarters
was highly successful, and the talks were recorded on audiotape
for distribution to Areas for training purposes.
1.11 Delivery of the training will continue
until July. The situation is monitored by the ECHR Steering Group,
and by regular updates to senior management. Further training
needs have been identified: for staff on long-term leave, for
new joiners, and for junior staff whose role does not currently
involve casework review. Work is commencing to incorporate these
needs into the overall programme, and we continue to evaluate
the effectiveness of the training.
1.12 We continue to work with other prosecuting
agencies and Government departments on issues of concern, including
the identification of fresh areas for consideration. We continue
to liaise with ACPO on their intiative to audit policy and procedures
with police forces, and are establishing links at lcoal levels
on preparations for implementation.
1.13 As more criminal cases in the higher
courts refer to Convention issues, and with the increasing number
of Scottish cases involving devolution issues, we are now focusing
on establishing systems for improved communications, both within
the CPS and with other prosecutors, to ensure the exchange of
information on human rights issues, and the co-ordination of response
where appropriate. We have already established a liaison point
within the service for assistance, and are working on a wider
communications strategy for post implementation. In addition,
we are considering with other CJS agencies how best we can monitor
the effectiveness of implementation.
1.14 The timetable for action is broadly:
— January 2000-July 2000—delivery
of main training to CPS staff;
— April-May 2000—formally update
guidance material, ongoing;
— May 2000—review systems for
communications, including "help desk";
— June-August 2000—assessment
of internal procedures and policy review, finalising outstanding
issues;
— September 2000—formal update
of guidance material, ongoing;
— July-December 2000—evaluation
of training, delivery of refresher courses.
2. How entry into force of the Human Rights
Act may affect the career prospects of CPS lawyers who might in
the future expect to be considered for judicial appointments.
2.1 We are currently considering this issue.
Two aspects of the Human Rights Act in particular may affect CPS
lawyers who aspire to judicial appointment: the article 6 requirement
that a tribunal be impartial and independent; and the article
6 requirement that reasons be given for decisions.
2.2 At present, there is a requirement to
sit part-time before a full-time judicial appointment can be taken
up. Adjudicating on matters in which the CPS is involved, whilst
at the same time employed by CPS, may possibly offend Article
6 of the European Convention of Human Rights (tribunal to be independent
and impartial).
2.3 CPS officials are working with LCD officials
to explore possible solutions. Alternatives to the part-time requirement
are being explored, as is the possibility of adjudicating on non-CPS
criminal cases eg SFO, Customs and Excise etc.
2.4 In addition, the Lord Chancellor has
recently taken steps to reinforce the actual and perceived independence
and impartiality of tribunals, following the cases of Procurator
Fiscal v Starrs and Chalmers, McGonnell v UK and the Scottish
case of Woodward, all of which turned on the issue of tribunals
being (and, just as importantly, being seen to be) independent
and impartial.
2.5 The HRA requirement for reasons to be
given for decisions might be a factor working in favour of CPS
lawyers aspiring to judicial apppointment, since any feared bias
or lack of impartiality in decision making would be more obvious
than at present when no reasons are required to be given.
3. Whether, and how, the CPS's handling of
prosecutions may alter as a result of the entry into force of
the Human Rights Act.
3.1 The CPS recognises that the Human Rights
Act will have widespread implications for the handling of prosecutions
by the CPS. As part of our early planning work, we identified
that the Act will have extensive impact in the following principal
areas of our work:
— decision making, and in particular
in the exercise of prosecutorial discretion;
— development of policy and operational
guidance;
— overall conduct of cases, including
responses to victims and witnesses;
— as part of our advisory role to the
police;
— dealing with legal arguments in court;
3.2 The Code for Crown Prosecutors is currently
being revised to take into account the Human Rights Act and the
revised Code will be published before the implementation of the
Act.
3.3 The training and guidance package which
all our prosecutors will have received before the implementation
of the Act will ensure that they are able to apply human right
principles.
3.4 We are also aware that in the initial
period following the implementation of the Act that there will
be arguments raised in court which are not sound in ECHR terms
and we are equipping our prosecutors to recognise and deal effectively
with such arguments.
3.5 The DPP wrote to all Bar Circuit leaders
in January setting out the CPS position on the training requirements
for prosecuting counsel, to ensure that those counsel who we instruct
are also well equipped to deal with ECHR points.
26 May 2000
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