Memorandum submitted by the Attorney General
ATTORNEY GENERAL'S MEMORANDUM OF EVIDENCE
TO THE JUSTICE COMMITTEE IN ITS INQUIRY INTO THE WORK OF THE CROWN
PROSECUTION SERVICE
1. This memorandum sets out recent developments
in the strategic direction of the prosecuting departments, under
the leadership of the Attorney General, to assist the Justice
Committee in its Inquiry into the role of the Crown Prosecution
Service.
BACKGROUND
2. The background to this is that the Directors
of the prosecuting departments (which are the Crown Prosecution
Service (CPS), the Revenue and Customs Prosecution Office (RCPO),
and the Serious Fraud Office (SFO)) exercise their statutory functions
subject to the superintendence of the Attorney General. The Attorney
General is accountable to Parliament for their work. She is responsible
for safeguarding the independence of the prosecutors in taking
prosecution decisions. The Attorney General receives the budget
for the prosecuting departments and sets their strategic direction.
The Attorney is the Government Minister responsible for prosecution.
As such, she is responsible, with the Directors, for ensuring
that in the development of Government policy, due account is taken
of the role of the prosecutors, of the impact of policy proposals
on prosecution, and of the contribution which prosecutors can
make.
3. The Prosecution of Offences Act 1985,
which created the Crown Prosecution Service, preserved the right
for others to prosecute. The Criminal Justice Act 1987 created
the SFO and the Commissioners for Revenue and Customs Act 2005
created RCPO. The CPS prosecutes cases brought by the police,
immigration officers and SOCA, the RCPO cases brought by HMRC
and SOCA, and the SFO cases which come within their published
criteria and which they accept for investigation. The Director
of Public Prosecutions (DPP) is required by law to issue a Code
for Crown Prosecutors, which is applied also by the Director of
the SFO and by law by the Director of the RCPO. The Code gives
guidance on general principles to be applied in determining whether
proceedings for an offence should be instituted or discontinued
and which charges should be preferred. The DPP consults the Attorney
and the other Directors about any proposed changes to the Code.
The provisions of the Code and any changes are required to be
included in the DPP's annual report, which is laid before Parliament.
There is a Director of Service Prosecutions who leads the prosecution
capability of the three Armed Services. There are other specialist
prosecutors linked to departments or agencies with some responsibilities
for enforcing some aspects of the criminal law, typically in a
regulatory environment, such as the Health and Safety Executive.
A CONTINUING PROGRAMME
OF REFORM
4. In 2007-08 the Government consulted on the
role of the Attorney General. Following this consultation, the
Government concluded that there was no need for fundamental change
to the responsibilities of the Attorney General, nor to the basic
structure of the relationship between the Attorney and the Directors.
However it was identified that there was a need for reform to
clarify the way in which the relationship operates, to safeguard
the independence of prosecution decisions and to confirm and safeguard
the Attorney General's accountability to Parliament. The Government
proposed that the Attorney General be required, in consultation
with the main prosecuting authorities, to produce a protocol setting
out how their relationship would operate. The Government also
proposed some rationalisation of the offences for which consent
to prosecution is required by the Attorney or the DPP and a commitment
that the Attorney would no longer have a power of direction in
relation to prosecution decisions (or in the case of the SFO,
investigation and prosecution decisions) save in very exceptional
circumstances involving national security. It was also proposed
that the Attorney General should not routinely attend meetings
of Cabinet.
5. In 2008 the draft Constitutional Renewal
Bill, which would give effect to these and other reforms, was
subject to pre-legislative scrutiny. At the same time the Attorney
has been working with the Directors on the protocol, which covers:
general responsibilities; strategy, planning and performance;
responsibility for prosecution decisions; development of policy;
dealing with the media; and dealing with complaints. It will provide,
for the first time, a clear and transparent framework for the
relationship between the Attorney General and the prosecuting
departments. While the draft legislation makes provison for the
protocol, the protocol does not need to be on a statutory footing.
6. The Attorney General has, in parallel,
been taking forward a number of other reforms to the operation
of the relationship between herself and the Directors and their
relationship with each other and with other prosecutors.
In 2008-09 the Attorney set up for the first
time a Strategic Board, which is chaired by her and includes the
three Directors over whom she exercises statutory superintendence.
The Board oversees strategy, reviews and monitors financial management
and performance, oversees the development and delivery of Spending
Review submissions, encourages joint work where appropriate, and
identifies and pursues opportunities to achieve maximum efficiency
and effectiveness. The Attorney's responsibilities, and the membership
of the Strategic Board, extend more widely to the Law Officers'
Departments as a whole, including the Treasury Solicitor's Department,
Her Majesty's Crown Prosecution Service Inspectorate, the National
Fraud Strategic Authority and the Attorney General's Office itself,
but this memorandum concentrates primarily on the strategy for
the prosecuting departments.
7. The Attorney General has a role also
in respect of the prosecutors in Government departments and agencies,
within the Government Legal Service (GLS) over whom she does not
have statutory superintendence. She exercises "general superintendence"
for legal and prosecutorial questions; and sponsors common approaches
to sharing expertise, guidance and training, for example through
the shared Prosecutors' Action Zone on the GLS website, LION.
There is some work in hand looking at the arrangements for prosecution
across the GLS, which will feed into the Law Officers' Departments
Strategy Programme's examination of the prosecution landscape
and its fitness for the future, see below.
8. The Attorney supports and encourages
collaboration, coordination and joint working between the prosecutors.
She oversees and coordinates legal and practice issues, both domestic
and international, which cross over departments and affect all
prosecutors. Her position of oversight in respect of all the prosecutors
gives her a unique insight, enabling her to identify systemic
issues which need to be addressed. To ensure consistency of practice
across prosecutors generally the Attorney General may issue guidelines.
(Examples of the kind of area where guidelines may be needed include
plea negotiations in fraud cases, on which the Attorney General
consulted in 2008.)
9. Another mechanism for coordination is
the Prosecutors' Convention, a document to which a large number
of prosecuting authorities are signatories. Its purpose is to
require prosecutors to be proactive in overcoming the problems
that can arise where more than prosecuting authority wishes to
proceed against the same individual or company for related offences.
The Convention encourages prosecutors to co-ordinate their interests
and develop an agreed prosecutorial strategy with, wherever possible,
one prosecutor in the lead and a single (joint) prosecution. The
Convention also requires prosecutors to agree practical points
such as mechanisms for information sharing, disclosure and press
handling. The Convention works on the basis that prosecutors should
develop effective lines of communication from an early stage.
In 2008-09 the Attorney has sponsored a project to refresh and
re-launch the Convention, including a workshop attended by over
40 prosecutors from prosecuting authorities as diverse as the
Civil Aviation Authority, Maritime and Coastguard Agency, FSA,
DEFRA, SOCA, Office of Fair Trading as well as the statutory prosecutors.
The revised Convention should be adopted shortly.
10. The role and expectations of the independent
prosecutor have evolved considerably since the CPS, and in their
turn the SFO and RCPO were set up. The fair and effective prosecution
of offenders is a more important, more demanding and more sophisticated
job than it has ever been. Crime crosses borders and exploits
new technology. Prosecutors need to develop the specialist knowledge
and skills to take forward ever more complex cases. They need
also to be able to work across many organisational boundaries,
as crime is increasingly multi-faceted. For example, human trafficking
may involve offences relating to employment law, non-compliance
with the National Minimum Wage, immigration offences, drugs, money
laundering, sexual exploitation and/or violence, requiring investigators
and prosecutors to work in an increasingly joined up way. Prosecutors
need also to engage with their communities to ensure that their
public interest decisions are properly informed by the public's
concern about crime.
11. The prosecutors have an important position
as gatekeepers to the criminal justice system, working ever more
closely with investigators to ensure that prosecutions go forward
with the best chance of success; as well as advising on and implementing
non-prosecutorial disposals. A close, professional and robust
relationship between the prosecutors and the investigators is
an increasingly important aspect of justice. Early involvement
of the prosecutors in an investigation helps investigators to
develop an investigation strategy which enables a case to be built
up effectively towards prosecution, or to identify early where
an investigation is unlikely to be successful, with assessment
given to the use of alternatives and ancillary orders and for
example for assets to be restrained as necessary sufficiently
early, to be recovered more effectively in due course. A good
example of the benefits of early and close involvement is the
recent prosecution in the Rhys Jones case. Eleven year old Rhys
Jones was tragically shot on 22 August 2007. The next day a CPS
Crown Advocate was nominated as the reviewing lawyer. After a
painstaking evidence-gathering exercise, during which the CPS
reviewing officer worked closely with the investigating police
officers, the CPS took the decision to charge a number of individuals,
all of whom were later convicted. Throughout this period, the
reviewing officer made and maintained contact with Rhys Jones'
parents, providing them with updates and clarification. And, ultimately,
the reviewing officer, a Crown Advocate, was second junior at
the trial. Prosecutors also have a role in sentencing: CPS advocates
prepare a Plea and Sentence Document in Crown Court cases and
appropriate cases in the magistrates' courts. This document identifies
aggravating and mitigating factors in the case as well as relevant
statutory provisions and case law.
12. The Attorney sees an important role
for the CPS in taking forward the equality and diversity agenda,
including ensuring that prosecution decisions are made fairly
and proportionately. The CPS has commissioned independent equality
impact assessments of charging decisions since 2004-05. The purpose
of these assessments is to produce an analysis of prosecutors'
charging decisions by principal categories for `like for like'
offences, comparing outcomes by ethnicity, age, gender and disability.
These assessments have been built upon year on year so that the
data analysed and conclusions that can be drawn have become increasingly
robust and comprehensive. In 2007-08, there was no variation of
charging decision by the main ethnic group of the suspect; and
no significant variation in charging decisions by gender. There
were some trend differences for specific groups. There were differences
between age groups, with older people significantly less likely
to receive a charge than younger age groups. The disability data
was not robust enough to draw conclusions. CPS is committed to
further improve data collection and better understand some variations
that have been identified. However, given the very important gatekeeper
role that CPS performs in the CJS, these assessments provide a
reassuring level of fairness and proportionality of the decisions
made by the CPS and the role of CPS lawyers' decisions in helping
correct and reduce disproportionality in the system, which we
know to be a challenging and enduring area. The CPS has also shown
leadership within the criminal justice system on responding to
hate crime, ensuring that vulnerable members of society receive
justice, and prosecutors continue to work in partnership to help
to protect the interests of victims and witnesses. In setting
the strategic direction for the prosecutors, the Attorney continues
to emphasise the importance of the independent prosecutor, providing
fair and objective decisions, to enable the criminal justice system
to deliver positive outcomes, reducing crime and protecting the
public.
VALUE FOR
MONEY
13. The Attorney emphasises also the need
to ensure that prosecution services are delivered with maximum
efficiency. The Law Officers' Departments have the smallest budget
of any department in Whitehall. In 2008-09 the overall settlement
for the Law Officers' Departments was £722.8 million. It
was distributed as follows:
(Note-TSol is largely funded on a net recovery
basis, with a relatively small amount of annual budget received
from Parliamentary Vote for three specific areas of work, plus
the AGO and HMCPSI. The NFSA is funded by around £12 million
over three years from the CSR allocation of an additional £29
million over three years to implement specific recommendations
from the 2006-07 Fraud Review).
This demonstrates that the CPS is by far the
biggest player in delivery of prosecution services, which is underlined
further by a comparison of workload data (here based on 2007-08
figures):
| |
| | |
| Mags Courts
completed
cases 2007-08
| Crown Court
completed
cases 2007-08
| Confiscation
orders
2007-08 |
Assets
recovered
2007-08 |
| |
| | |
| CPS | 966,626 | 96,992
| 4,090 | £65 million |
| RCPO | 1,018 | 270
| 485 | £21.1 million |
| SFO | N/A | 16
| 14 | £1.1 million |
| |
| | |
| |
| | |
14. In the CSR period 2008-11 the Law Officers' Departments
have a challenging settlement, with a target to deliver 5% efficiency
savings, and have now, with the rest of Government, been set a
further challenge to find their share of the additional VFM efficiencies
of £5 billion for 2010-11. There is clearly some scope to
find efficiencies from greater sharing of back office and other
services. Because of their small size the Law Officers' Departments
have already developed a complex of arrangements to assist each
other to achieve their business objectives, which include some
sharing of services and, on occasions, loans to manage variation
of spending against plans. The aim now is, urgently, to find more
systematic and long term shared arrangements in order to achieve
even greater efficiencies.
PROSECUTION LANDSCAPE
15. The current arrangements for delivering prosecution
services in England and Wales have developed over time and in
response to particular challenges, reviews and reports. As identified
above, there remains a need, more than ever, for expert provision
for the most complex cases as well as for a community facing approach
responding to the vast majority of cases, which may be legally
more straightforward but which touch the lives and concerns of
the public day to day. The current arrangements are capable of
delivering this, particularly within the coordinating framework
provided by the Attorney General as described above. But the Attorney
has agreed with her Strategic Board that the time is right to
examine the current arrangements critically, against an assessment
of current and future crime trends and investigative priorities
and bearing in mind increasing constraints over public expenditure,
and to implement such changes as may be necessary to provide effective
and efficient prosecution services for the future.
LAW OFFICERS'
DEPARTMENTS STRATEGY
PROGRAMME
16. Accordingly the Attorney is leading a Strategy Programme,
involving all the Directors, which is, among other things, examining
both the effectiveness and efficiency of current case flows and
assessing the likely future demand for prosecution. It is this
analysis that will enable an evidence based decision to be taken
as to the most effective and efficient delivery model for prosecution
going forward. Announcements about conclusions from the Programme
will be made as they emerge.
Rt Hon Baroness Scotland of Asthal QC
March 2009
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