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

3  Prosecutors and victims

At the heart of the criminal justice system

79.  In 2002 the Government's White Paper Justice for All set out the concept of rebalancing the criminal justice system to place victims at its heart:

"The people of this country want a criminal justice system that works in the interests of justice. They rightly expect that the victims of crime should be at the heart of the system. This White Paper aims to rebalance the system in favour of victims, witnesses and communities".[166]

The prosecutor has been a key part of the Government drive to put victims at the heart of the criminal justice system. The Prosecutors' Pledge was launched in 2006, setting out the expectations that a victim can have of the CPS (and other prosecutors) including keeping the victim informed of decisions that are made and seeking victims' views on particular decisions. On launching the pledge then Attorney General, Rt Hon Lord Goldsmith QC, said:

"The prosecutor plays a vital role in achieving this objective [of putting the victim at the heart of the criminal justice system] by communicating with and supporting victims of crime. They are also champions of victims' rights and protect their interests".[167]

However, Victim Support did not feel that the aim to put the victim at the heart of the system was being realised, saying that the Government has set out its stall "as putting victims and witnesses at the heart of the criminal justice system when actually that is very hard to prove to anybody who then goes through the system".[168]

80.  Several of our witnesses suggested that one of the reasons why this objective might not be realised was that it set an unrealistic expectation of what the role of the prosecutor could be with regard to the victim. Nicola Padfield, University of Cambridge, said: "The Government's determination to 'rebalance' the system in favour of victims can exaggerate the role of the victim in the prosecution process".[169] Robin White noted that there had to be distance between the victim and the prosecutor: "One form of prosecutor independence in the public interest is independence from the victim".[170] He went on to distinguish between the role of the prosecutor with regard to the victim, and with regard to the criminal justice system:

"prosecution by a public prosecutor is not necessarily in the interests of the victim. It may or may not be, but the point of the criminal justice system is to identify who did the wrong thing and make that individual subject to a penalty".[171]

Sir Ken Macdonald QC noted in his final lecture as Director of Public Prosecutions that "it will never be possible, in adversarial proceedings governed appropriately by Article 6, for the interests of victims to overcome those of defendants".[172]

81.  Victim Support feared that victims had been given unrealistic expectations that the prosecution would be on their side. Gillian Guy, Chief Executive of Victim Support, told us: "I suspect that they [victims and witnesses] believe that prosecutors are there as their barrister, as their advocate".[173] She described victims and witnesses asking the Victim Support service:

" 'When am I going to meet my barrister? Why have I not got the same access to my barrister as the defendant has?', and, 'Why do I have to deal with so many different agencies, whereas the defendant only has one advocate that they have to channel their process through?'"[174]

However, the CPS "does not act for victims or their families as solicitors do for their clients".[175] Victim Support questioned whether such misperceptions might arise because victims are given false expectations. Gillian Guy told us

"the expectations from victims and witnesses tend to be what we give them as expectations, and we spend the rest of our time perhaps trying to live up or down to them".[176]

She called for a commitment to a more realistic set of expectations:

"I think the answer is that we really need to define what those expectations realistically can be within a criminal justice system and then seriously live up to them".[177]

82.  Rather than being the champion of victims' rights, the evidence we heard suggested that the prosecutor should be seen as more of a neutral figure, whose role ultimately is to provide for justice. The Attorney General said:

"I think that allowing the prosecutor to be the gatekeeper, to be the guardian of the public interest … is really important, but that means representing all the public interest, which is the victims, the witnesses and the defendant, and that fairness is something which I think is central to the prosecutorial role".[178]

The DPP also emphasised the role of the CPS in contributing to a fair criminal justice process: "The existence of a strong, effective and publicly respected prosecuting service is an absolute requirement of a fair criminal justice system based on the rule of law".[179] Rather than acting on behalf of victims, he noted: "the client of the CPS is the public".[180] Fairness was also one of the driving forces behind creating the CPS. Sir Cyril Philips, in the report of the Royal Commission on Criminal Procedure, said of the separation of functions of prosecution and investigation leading to the creation of the CPS that the "division of responsibility and function of itself provides a safeguard to the liberty and rights of any person who becomes involved with it".[181]

83.  Telling a victim that their views are central to the criminal justice system, or that the prosecutor is their champion, is a damaging misrepresentation of reality. Expectations have been raised that will inevitably be disappointed. Furthermore, the criminal justice system is set up to represent the public rather than individuals, and there are good reasons for this. The CPS's role as independent arbiter of decisions about prosecution is critical. Explaining this role clearly to victims such that their expectations are managed realistically, rather than raised then disappointed, is vital.

Victims' experiences

84.  Sir Ken Macdonald QC noted that:

"The Crown Prosecution Service and prosecutors find themselves at the heart of this debate. It is possible to find a balance which improves the respect with which victims and witnesses are treated, while at the same time upholding defendant rights and fair trial principles".[182]

Whilst therefore not raising false expectations that the prosecutor will act as the victim's advocate, we should be striving to achieve a better service to victims. Victim Support have previously told us that what victims want most of all—apart from not having been a victim in the first place—is that the same thing will not happen again.[183] In other words, the role of the criminal justice system in preventing offending and reducing re-offending is of major importance to victims, and the responsibility of the CPS to act in support that aim should be a clear part of the explanation of the role of the CPS.

85.  It was emphasised to us that victims needed to be treated as people, and helped to understand what was happening in the criminal justice process. Mind described to us how people might feel that they were "passengers in a system which was being driven by other people".[184] Victim Support similarly had concerns that organisations were "process driven rather than people driven".[185] Mind felt that there was a disconnection between the process and the individual:

"Often the individual agencies are trying to get the process working in the most effective way, but there seems to be a lot of problems and barriers on the way to helping these things happen most effectively to the individual, and it is the individuals, whether they are the witnesses or the victims, who are quite often carried along".[186]

Victim Support talked about victims having the information to really understand what was happening:

"there is a great deal of power that resides in the CPS, which is seen by victims and witnesses, and yet it is not fully explained to them, actions are not fully explained to them".[187]

The Health and Safety Executive (HSE) acknowledged this as a key part of their work as a prosecutor with victims: "The important thing for us to do is to manage the expectations of victims and to be able to explain".[188] However it saw challenges in achieving this within the system for criminal justice:

"it is difficult for [bereaved families] to understand why the case has to go from one agency to another to the coroner and then back to court. All that we can do is to try and explain that".[189]

86.  The CPS highlighted the different policies and work undertaken by the CPS to improve the service for victims. These include the Prosecutors' Pledge, setting out the support that victims can expect from the CPS; the Direct Communications with Victims scheme, introduced in September 2002—and now incorporated into the Code of Practice for Victims of Crime—setting out how the CPS will communicate directly with victims; the 'No Witness, No Justice' care programme, through which Witness Care Units have been established across England and Wales to ensure that victims and witnesses have information and support necessary to give their best evidence; and Victim Focus, an enhanced service for bereaved relatives.[190]

87.  The Attorney General told us that the treatment of victims is:

"light years away from where it used to be and it is much better. They [victims] always say there is more for us to do, but the important thing is they are saying it is much better than it was".[191]

The Director of Public Prosecutions acknowledged the role of CPS staff in providing a better service for victims and witnesses: "Undoubtedly, they are working really hard on this issue. They are really proud of what they do".[192]

88.  Victim Support was also complimentary about key policies providing for victims. The Chief Executive of Victim Support described having a meeting with the Director of Public Prosecutions soon after joining Victim Support, being presented with the Prosecutors' Pledge and thinking "fantastic".[193] The problem, however, seemed to be in what happened next, in the need for "words on paper [to be] given life".[194] We are not convinced that the plethora of different policy statements are followed through in practice, or that the Prosecutors' Pledge has a central place in the minds of prosecutors on a day-to-day basis. There is a considerable amount of well-intentioned over-complexity in the system and we urge the Attorney General to undertake radical steps to simplify the systems of pledges, guidance and regulation so that expectations and commitments are set out for everyone in the CPS and for courts, victims and the general public in the same clear and simple terms.

89.  The Prosecutors' Pledge was discussed frequently in our evidence. The Director of Public Prosecutions felt that "it is really taken seriously and is recognised to be central".[195] Victim Support were more sceptical about whether "people would understand it and recognise it".[196] They were however positive about the future:

"I think [the Prosecutors' Pledge] is something that can work, but, first of all, the leadership has to be about, 'We will make this work', and then the support has to be about, 'we will give people the wherewithal to make it work.'"[197]

90.  One of the key issues that needs to be resolved is inconsistency. Gillian Guy said:

"I believe there is commitment on the part of the CPS to change and we are seeing that happen, and what we have been saying, I think reasonably consistently ourselves, is that it is inconsistency that is the problem".[198]

Mind similarly described the CPS's service to witnesses as "patchy".[199] The Chief Inspector of the CPS was also concerned that good initiatives might be introduced but were then not supported, leading to a decline in performance:

"Victims and witnesses are a good example of that because in the 2005 overall performance assessments we gave some quite positive findings to the CPS. We had to report in 2007 that there was actually a marked decline".[200]

91.  PCS questioned whether the CPS's ability to provide a service to victims and witnesses was hampered by the resources available, saying:

"The capacity for CPS to cater for victims and witness needs at court is limited by resources, for instance caseworkers in London and a number of other CPS Areas regularly have more than two or three court rooms to cover". [201]

Mind and Victim Support argued that CPS staff were not necessarily being given the tools to provide an effective service to victims, because they were not provided with, or required to attend, relevant training.[202] The Director of Public Prosecutions told us that "We have training for all of our prosecutors on working with victims and witnesses".[203] Victim Support told us that training modules around working with victims had only been taken up by approximately 20% of prosecutors.[204] Gillian Guy noted that, with regard to this training, "we are keeping an eye on what mandatory actually means".[205]

92.  A second point raised in relation to training was what it actually covered. Again, Victim Support wanted training that looked at victims as people rather than a part in a process:

"there are issues around … the training that is given in order for the legal profession … to actually be able to relate to people rather than process and be clear about what it really feels like ... what the impact is of the justice system on individuals".[206]

They suggested that "it would help enormously if organisations like ours were involved in preparing the training for prosecutors and getting that understanding into the training base".[207] There were also specific concerns about the content of training: "Mind believes the CPS does not provide sufficient training about mental health for prosecutors to make consistently good decisions concerning mental health and credibility".[208] Mind said that decisions about whether or not to prosecute should not be based on "assumptions" about a witness but that criminal justice professionals should consider cases individually on the basis of a better understanding of mental health and the implications for witness credibility.[209]

93.  The concept of involving victims in the evaluation of what was happening was raised several times in evidence. Mind suggested that victims' views could be part of a qualitative mechanism to assess CPS performance such that it incorporated: "reflection which is led by people who have been victims in the past".[210] Gillian Guy, Chief Executive of Victim Support, said: "I am … a fan of actually talking to victims and witnesses, actually confronting what their experience has been and making changes as a result of that".[211] The Inspectorate of the CPS stated that they used feedback from victims and witnesses in their inspections. "When our inspectors go to court they would speak to the victims and witnesses if they were able to with the help of the Witness Service after they had given their evidence". [212]

94.  Victims want to be treated as people, which often does not happen in a criminal justice system that is driven by process. We are pleased that the CPS has risen to this challenge by developing good policies for engaging with victims and witnesses. Delivering these consistently on the ground continues to require a major effort.


95.  One way to incorporate feedback from people who have experienced the work of the CPS is through complaints. This was an area that our witnesses felt needed urgent attention. Nicola Padfield, University of Cambridge, stated:

"One area that is quite difficult to explore and to learn about from different bodies' websites is complaints against the CPS. Who deals with complaints against the CPS? Should that be for an inspectorate or should it be for a separate complaints body?"[213]

Both Mind and Victim Support felt there was a need for a "straightforward" system to make complaints within the criminal justice system.[214]

96.  On 5 March 2009 HMCPSI published a review of CPS complaints handling. This report found considerably variety in CPS handling of complaints:

"Although more than half were excellent or good [in terms of quality of response and thoroughness of investigation], the balance did not meet the required standard and too many were unduly defensive".[215]

The report also criticised accessibility for people wanting to make a complaint as, for example, "The complaints leaflet does not define what a complaint is, is not readily available in the places where, according to the guidance, it ought to be".[216] We discussed with the Chief Inspector of the CPS whether the complaints system should have an external element. He commented: "There is precedent for it in relation to the Public Prosecution Service in Northern Ireland where they do have an independent complaints officer who is outside the Service".[217] The Chief Inspector did not, however, feel it should be part of his role:

"There is already an existing power for the Attorney General to ask us to look into matters relating to the Service which are of particular public concern. It would probably detract from our ability to inspect if we became routinely involved in reviewing complaints handling. I do not think I would want that role other than in exceptional circumstances".[218]

97.  Even before the HMCPSI report into CPS complaint handling was published the CPS told us it was an area that they were aware of and one on which they wanted to take action. Peter Lewis, Chief Executive, said: "We acknowledge that we have got to do more on complaints. Our complaints system at the moment is too old, too defensive, it is not open and transparent enough".[219]

98.  The lack of a consistent, effective and readily understood complaints handling system has been a serious weakness of the CPS. We welcome the CPS's recognition of the need, and commitment, to take action to ensure that the system is more open and transparent. We believe that it should provide a valuable mechanism for the CPS to learn more about the service that its various clients and stakeholders would like provided, as well as giving a proper response to complainants.


99.  Stakeholder organisations such as Mind and Victim Support raised serious concerns that special measures are not being appropriately used; these concerns were acknowledged by the CPS Inspectorate. Special measures are intended to assist vulnerable or intimidated witnesses to give the best quality evidence they are capable of in criminal proceedings. Such measures may include the ability to give live evidence through a televised link thus without having to be physically present in the court room, for wigs and gowns to be removed, and for witnesses to be able to give evidence through an intermediary.[220] Victim Support told us that "notification and applications [for special measures] are made too late, when the courts have no choice, according to their discretion, but to refuse those applications".[221] However, the bigger problem is that people are not being identified as suitable for special measures in the first place. Victim Support told us:

"people are not being identified for those special measures at all sometimes, and we have discovered ourselves as the witness service 18,000 people on the day are coming to court who should have been identified for special measures: so they have been failed on two occasions coming through the system and they are then in a court process without that assistance".[222]

Sally Hobbs, Deputy Chief Inspector, HMCPSI, commented: "It is fair to say that there are shortcomings in both [police and CPS] in terms of identifying vulnerable and intimidated victims and witnesses at the various stages of contact".[223]

100.  Paul Farmer, Chief Executive of Mind, was able to describe the consequences of not utilising special measures effectively, combined with what he described as the CPS's "institutional reluctance around being prepared to believe people with mental health problems as credible witnesses ".[224] He noted:

"the lack of the CPS's ability to be able to pursue a case—effectively having cold feet because they felt that the key victim was not a reliable witness but not actually putting in place appropriate support for that witness which could have made the whole process much more effective—has led the CPS to be found to be acting unlawfully and in contravention of the Human Rights Act".[225]

101.  When the Director of Public Prosecutions subsequently came to give evidence to us he expressed concern about these issues raised by previous witnesses. He drew attention to the work that is being done:

"In 2008, 30,449 applications were made for special measures, of which 28,858 were granted. That gives you a sense that there is some really significant work being done here on behalf of victims and witnesses".[226]

He continued: "We are actively considering some research to see if we can capture better some data about possible missed cases".[227]

102.  Whilst we were pleased that the concerns of earlier witnesses had already been taken on board, we were alarmed by Mind's statement: "In discussions with the CPS, Mind has been assured that primary responsibility for identifying vulnerable witnesses lies with the police and not prosecutors".[228] Victim Support made a general comment: "What has happened so far is that the separation has enabled people to pass the buck".[229] This may suggest a tendency for agencies to pass the responsibility for a particular problem to a different agency, rather than dealing with it themselves. Sally Hobbs, Deputy Chief Inspector at HMCPSI, highlighted that both the police and the CPS had a role to play:

"There are certainly some issues in terms of police … They are perhaps not sufficiently aware of what special measures really meant for vulnerable and intimidated victims and witnesses … For the prosecution, it is about being more alert at the charging stage … The alertness is there in terms of the evidential issues but it is actually what is needed for those people as well that is missing".[230]

103.  Special measures are a crucial part of the criminal justice system which should enable a witness to give the best evidence they are capable of giving. We are concerned by the evidence that individuals are not being identified as being suitable for special measures, or that delivery failures mean they do not receive them once their need has been identified. We are also concerned at the suggestion that the CPS may be reluctant to recognise that people with mental health problems can be credible witnesses at all. The CPS is not the only agency with a role to play in identifying those who need special measures but it is a key agency and should be alert at the charging stage to what people need. The CPS could also work with the police to ensure that they are identifying individuals for special measures effectively. We look forward to hearing more about the CPS's work to improve its identification of those cases where the need for special measures was not recognised.

166   Justice for All, July 2002, Cm 5563, foreword Back

167   Statement by the Attorney General, The Prosecutors' Pledge, July 2006 Back

168   Q 122 Back

169   Ev 106 Back

170   Q 15 Back

171   Q 15 Back

172   Sir Ken Macdonald QC, 'Coming out of the shadows' CPS lecture, 20 October 2008 Back

173   Q 122 Back

174   Q 122 Back

175   Ev 78 [CPS] Back

176   Q 122 Back

177   Q 122 Back

178   Q 381 Back

179   Keir Starmer QC, 'A prosecution service for the 21st century', speech to the London Metropolitan University, 9 January 2009 Back

180   Q 335 Back

181   Sir Cyril Philips, Report of the Royal Commission on Criminal Procedure, January 1981, Cmnd. 8092-I, para 10.5 Back

182   Ken Macdonald QC, 'Balancing the Rights of Victims and Defendants: prosecutors and due process', a speech to the British Institute of Human Rights, 18 January 2008 Back

183   Oral Evidence taken before the Justice Committee on Consultation Sentencing Guideline: Theft and Burglary (non-dwelling), 3 June 2008, HC (2007-8) 649-i, Q 15 Back

184   Q 126 Back

185   Q 122 Back

186   Q 126 Back

187   Q 122 Back

188   Q 251 Back

189   Q 252 Back

190   Ev 78-9 Back

191   Q 383 Back

192   Q 343 Back

193   Q 128 Back

194   Q 128 Back

195   Q 343 Back

196   Q 123 Back

197   Q 130 Back

198   Q 145 Back

199   Q 141 Back

200   Q 261 Back

201   Ev 115 Back

202   E.g. Q 141 Back

203   Q 340 Back

204   Q 130 Back

205   Q 130 Back

206   Q 123 Back

207   Q 144 Back

208   Ev 95 Back

209   Ev 95 Back

210   Q 145 Back

211   Q 145 Back

212   Q 262 Back

213   Q 13 Back

214   Qq 137, 138 Back

215   HMCPSI, When things go wrong: a thematic review of complaints handling by the Crown Prosecution Service, March 2009, Chief Inspector's Foreword Back

216   HMCPSI, When things go wrong: a thematic review of complaints handling by the Crown Prosecution Service, March 2009, para 2.3 Back

217   Q 296 Back

218   Q 296 Back

219   Q 332 Back

220   Youth Justice and Criminal Evidence Act 1999 Back

221   Q 123 Back

222   Q 123 Back

223   Q 263 Back

224   Q 142 Back

225   Q 139 Back

226   Q 339 Back

227   Q 339 Back

228   Ev 97 Back

229   Q 139 Back

230   Q 264 Back

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