The Crown Prosecution Service: Gatekeeper of the Criminal Justice System - Justice Committee Contents

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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