MEMORANDUM 46
Submitted by Neil O'May, Solicitor, Bindman & Partners (CA 141)
Is the Crown Prosecution Service drawing a sensible line about which cases should be prosecuted?
In cases of historical sexual abuse investigations, there is a culture within the prosecution of believing the complainant. Healthy scepticism, which is necessary for good investigators and prosecutors is missing. The culture is analogous to the doctrine in family law cases of "believe the child". It results in the investigating officers and prosecution lawyers bringing cases without properly investigating a complainant's account. Equally, cases are brought that should not be prosecuted.
More so than in any other cases, the police and prosecutors become uncritical supporters and advocates of the complainant. This is partly because of the nature of the allegations, but also because the victims are perceived as vulnerable. Vulnerability can of course result in unreliability but that is not a consideration.
At its lowest, the culture allows prosecutors to see their role simply as bringing complainants to court to have their say, leaving the defence to find the evidence to rebut the allegations. The prosecution abrogates the search for the truth to the court process. This is a very dangerous course.
This attitude needs to change in these cases to prevent miscarriages of justice.
Failure to investigate
Despite the provisions of the Criminal Procedure and Investigation Act 1996, prosecutors are all too willing to accept statements (often very short in length and detail, but containing the most serious allegations) as sufficient to mount a prosecution.
The Criminal Procedure and Investigation Act 1996 requires the police to pursue all avenues in an investigation, including anything that might undermine a complainant. The case of Reeves shows how little is in fact done. As can be seen from the correspondence, the prosecution took no steps to access social services records and school reports, leaving it entirely to the defence to do so. Even when those undermining documents became available, the prosecution team, operating a culture of "get it into court and let's see what happens" did not review them, or if they did, they did not consider it was their role to factor the material into the decision to prosecute.
CPS complaints procedure
As is shown in the correspondence in Appendix 1 (not printed), the Crown Prosecution Service and the DPP operate a deficient complaints procedure because:
(a) The response to a complaint is made by the Branch Crown Prosecutor who is not independent.
(b) The DPP's Office acts solely as a postbox for this response.
(c) The involvement of the Director or Chief Executive is minimal and perfunctory. There is no true objective review of the case at that level which might lead to lessons being learned or complaints being property responded to. The glib and defensive action of the CPS office is echoed in the DPP's approach.
(d) Although a prosecution is, in effect, a joint one between the CPS and police, when things go wrong at the time of a complaint, the CPS will not address any part of the investigation issues and the police will not address any part of the advice. The buck is passed from one to the other.
It is only at the level of the Attorney General that there is any semblance of a proper independent review. It is the hallmark of a complacent system where complaints are dealt with in such a high-handed manner. Many of the issues that the Committee are now examining might well have been addressed had the DPP/CPS operated a proper case review and complaints procedures.
Association between CPS and the Police
In the Reeves case, as in many others, the CPS were involved early on in the investigation. Advice was given as to the direction of the investigation and the steps to be taken by police before charges were brought. There are certain problems with this.
(i) The CPS may become susceptible to the "support the victim" culture.
(ii) Any mistakes or inadequacies in the investigation stage are not remedied during the court preparation stages.
Consideration should be given to:
(a) Firm obligations on the CPS to initiate investigations which have the potential to undermine the prosecution case; There should be systems to ensure greater independence of prosecutors who come to run the case after charge.
(b) Fairer and simpler procedures to obtain disclosure from third parties and for those documents to be admissible at trial;
(c) The return of pre-CPIA 1996 "old style" committals in these cases;
(d) Properly functioning and independent review system to handle complaints against prosecutions as a whole (treating the police and CPS as one unit).
February 2002
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