1 Central to the Criminal Justice
System
1. The CPS and other prosecutors play a pivotal
role in the criminal justice system.[1]
"In hardly any other area of the law will the
exercise of discretion … have a greater effect on the individual
and the enjoyment of his or her fundamental right of liberty".[2]
Decisions made by the CPS have an enormous impact
on everyone experiencing the criminal justice system, whether
victims, witnesses or defendants. They determine what happens
to the work of the police, and of other investigative agencies,
and effectively determine the workload of the courts (and therefore
impact on the workload of the prison and probation services).
It is important for the CPS to contribute significantly to achieving
the broader aims of the criminal justice system.
2. Rt Hon Baroness Scotland of Asthal QC, the
Attorney General, and therefore Government Minister responsible
for prosecution, emphasised not only the importance but also the
challenges of the prosecution role: "The fair and effective
prosecution of offenders is a more important, more demanding and
more sophisticated job than it has ever been".[3]
She described her aim as trying to make sure that the prosecutors
are "effective gatekeepers" of the criminal justice
system.[4] Lord Justice
Toulson described this gatekeeping role of the Director of Public
Prosecutions (DPP):
"The head of an independent, professional prosecuting
service … entrusted by Parliament with the responsibility
of deciding whether or not a person should be prosecuted at public
expense".[5]
The prosecutor is entrusted with determining on an
evidential and public interest basis whether a person should be
prosecuted and therefore whether he or she should go forward for
a judgment before the courts. There is an obvious need for the
prosecutor to ensure that cases are not brought where there is
no real evidence, both to ensure that the time of the court is
not wasted when there is little prospect of conviction and that
innocent people are not unnecessarily put through the strain of
a court process. But MPs are frequently contacted by constituents
who are angry where there has been a decision not to prosecute,
where the local perception is that there is a case to answer and
a wish to see the courts decide. The decisions made by the prosecutor
often stand at the centre, amidst competing concepts of fairness
both to different players in the system and sometimes to the same
player in different ways, such as fairness to the public desire
for justice to been seen to be done and fairness to the public
in terms of spending their money effectively.
3. Despite the significance of the prosecutor
to the criminal justice system, much of the policy and public
debate seems to focus on policing or prisons. The Public and Commercial
Services Union (PCS) described investment in the criminal justice
system as "heavily biased on the issue of policing"
by comparison with other agencies.[6]
The CPS budget for 2007-8 was £639.5 million; in contrast
the Government grant and central spending on services for the
Police Service was £11.1 billion in 2007-08.[7]
Research for the British Crime Survey found that people spontaneously
associate police, courts and prison with the criminal justice
system but that "there was little awareness or understanding
of the Crown Prosecution Service".[8]
We undertook an inquiry into the role of the prosecutor to redress
this balance in our own body of work.
4. The role of the prosecutor in the criminal
justice system is pivotal, so it is perhaps surprising that the
principal prosecuting authority, the Crown Prosecution Service
(CPS), is not much more than 20 years old. The CPS began operation
in 1986 for a very specific purpose: to "make the conduct
of prosecution the responsibility of some one who is both legally
qualified and is not identified with the investigative process"
in the interests of "fairness".[9]
In its relatively short life there have already been a number
of reviews and discrete but fundamental changes to the powers
and role of the CPS. One significant example is the decision,
following the Rt Hon Lord Justice Auld's Review of the Criminal
Courts of England and Wales, to transfer the decision on what,
if any, offence an individual was charged with from the police
to the CPS in more serious cases.
5. The key theme that has engaged the Committee
is the extent to which changes to the prosecution have formed
part of a structured movement towards a clear vision of what the
role of the prosecution should be. The Attorney General said:
"The current arrangements for delivering prosecution
services in England and Wales have developed over time and in
response to particular challenges, reviews and reports".[10]
This appears to us to be a rather passive approach,
given the central importance of the prosecution service within
the criminal justice system. We fear that piecemeal changes may
be being made without full consideration of what these mean to
the prosecutor and to the criminal justice system as a whole.
The risk is that the CPS becomes home to "conflicting demands
… unclear expectations, unclear roles and responsibilities".[11]
6. It sometimes appears that the prosecutor
is caught in the middle of competing interests and is defined
by what other agencies want, rather than by a coherent vision
of what the prosecutor should be. When we asked Keir Starmer QC,
Director of Public Prosecutions (DPP), about the rationale for
reorganising the CPS so that the 42 areas (which match police
force boundaries) are also brigaded into 15 groups the answer
hinted at a balancing act between the other agencies in the criminal
justice system: "on a group basis … the courts can be
serviced better. So this was not a model designed only to suit
or to fit with the pattern and structures of policing".[12]
Sir Ken Macdonald QC, former Director of Public Prosecutions,
called the early CPS "an unhappy compromise between numbers
of strongly competing interests".[13]
David Jeremy QC painted a picture of the role of the CPS being
to resist the different interests and represent fairness: "the
prosecutor strives to resist pressures from victims and from the
police, to show respect for due process, to be fair and act as
a 'minister of justice'".[14]
7. The prosecution plays a pivotal
role in the criminal justice system. This role has become too
important to continue to be vulnerable to piecemeal amendment
in response to events. We expect the Attorney General and the
Director of Public Prosecutions to show clear leadership in defining
the role of the prosecutor in the criminal justice system. Specific
changes to the operation of the prosecution system should be made
in the light of an awareness of how they affect and contribute
to this clear role and to the criminal justice system as a whole.
8. The aims and purposes of
the Crown Prosecution Service need to be clear and it also needs
to be clear how they relate to the overarching aims and purposes
of the criminal justice system as a whole. We fear that the Crown
Prosecution Service is sometimes defined by what it is not or
by its relationship to other organisations, rather than its own
aims and purposes, or by clarity about its role within the criminal
justice system.
The inquiry
9. We began our work on the prosecution system
on 3 April 2008 in order to consider provisions in the Draft Constitutional
Renewal Bill relating to the Attorney General and her superintendence
over prosecutors. We reported on these specific matters in June
2008 (Draft Constitutional Renewal Bill (provisions relating
to the Attorney General), fourth report, session 2007-08,
HC 698).
10. We began this inquiry into the role of the
prosecutor, taking the CPS as the principal prosecuting agency,
with oral evidence in January 2009. We would like to thank all
those who submitted written material or gave oral evidence.
11. We look first at several key developments
affecting the role of the CPS, and particularly its relationship
with other agencies in the criminal justice system. We look then
specifically at the role of the CPS with regard to victims and
witnesses and what expectations have been created in relation
to what the CPS can achieve for victims. We consider a theme that
recurred through our inquiry, consistency, and how this relates
to the concept of the CPS as a national service, locally delivered.
Finally we locate the CPS in the context of other agencies that
conduct prosecutions in England and Wales and consider issues
of transparency and consistency. We do not attempt to look in
detail at CPS performance; the CPS is inspected by the CPS Inspectorate,
and is subject to detailed scrutiny in other forms, such as a
report into CPS handling of Magistrates' Court work published
by the National Audit Office in 2006.[15]
We hope, however, to illuminate key questions about the role of
the prosecutor in the criminal justice system.
1 Other organisations conducting prosecutions in England
and Wales include the Serious Fraud Office, Health and Safety
Executive, Local Authorities and the Royal Society for the Prevention
of Cruelty to Animals. For further discussion about the range
of prosecuting agencies see chapter 5. Back
2
Ev 93 [Maik Martin]
Maik Martin is a German lawyer and holds
a part-time lectureship in UK constitutional law at Freie Universität
Berlin, having previously worked at JUSTICE and at the House of
Commons. Back
3
Ev 62 Back
4
Q 378 Back
5
R (B) v. DPP (EHRC intervening) [2009] EWHC 106 (Admin) Back
6
Ev 118 Back
7
Ev 74; Home Office Departmental Report 2008, p.30 (this figure
is not exclusively Home Office spending). Back
8
Report prepared for the Home Office by BMRB Social Research, Fairness
and effectiveness in the Criminal Justice System: development
of questions for the British Crime Survey, p.3 Back
9
Sir Cyril Philips, Report of the Royal Commission on Criminal
Procedure, January 1981, Cmnd. 8092-I, para 7.3 Back
10
Ev 64 Back
11
Ev 116 [PCS] Back
12
Q 331 Back
13
Sir Ken Macdonald QC, Coming Out of the Shadows, CPS Lecture,
20 October 2008 Back
14
David Jeremy QC, "The Prosecutor's Rock and Hard Place",
Criminal Law Review, [2008] 936 Back
15
National Audit Office, Crown Prosecution Service: Effective
use of magistrates' courts hearings, HC 798 Session 2005-2006,
15 February 2006 Back
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