5 The public prosecution landscape
115. The CPS describes itself as "the principal
prosecuting agency in England and Wales".[255]
However, it is not the only agency. The Criminal Justice Act 1987
created the Serious Fraud Office (SFO), which investigates and
prosecutes serious and complex fraud. The Commissioners for Revenue
and Customs Act 2005 created the Revenue and Customs Prosecutions
Office (RCPO), which prosecutes cases brought by HM Revenue and
Customs (HMRC) and the Serious Organised Crime Agency (SOCA).
On 8 April 2009 the Solicitor General wrote to the Committee stating
that RCPO would be brought together with the CPS "in order
to deliver enhanced prosecution services to the public".[256]
The merger is due to take place 2009-10, and to be consolidated
the following year; for a transitional period David Green QC,
Director of RCPO, will lead an HMRC prosecution service within
the new combined service, reporting directly to the Attorney General.[257]
116. In addition to these prosecuting departments,
there are a range of other organisations that conduct prosecutions.
The Attorney General described a workshop attended by "over
40 prosecutors from prosecuting agencies as diverse as the Civil
Aviation Authority, Maritime and Coastguard Agency, FSA [Financial
Services Authority], DEFRA [Department for Environment, Food and
Rural Affairs], SOCA [Serious Organised Crime Agency], Office
of Fair Trading as well as the statutory prosecutors".[258]
The CPS noted:
"There is no definitive list of organisations
that institute prosecutions in England and Wales. The common law
power to instigate private prosecutions is preserved under section
6(1) of the Prosecution of Offences Act 1985 and it is used by
a number of organisations who otherwise do not have the statutory
power to prosecute".[259]
The CPS identified organisations that institute prosecutions
including the Gambling Commission, the Driver & Vehicle Licensing
Authority, local authorities and the Royal Society for the Prevention
of Cruelty to Animals.[260]
Further organisations invited to attend the Whitehall Prosecutors'
Group meeting (described below) include the National Health Service
and the Information Commissioner's Office.[261]
117. The Attorney General describes the CPS as
"by far the biggest player in the delivery of prosecution
services", comparing workload data which shows the CPS completing
96,992 Crown Court cases in 2007-08, the RCPO 270 and the SFO
16.[262] In terms of
other agencies that carry out prosecutions, in 2007-8 the Health
and Safety Executive (HSE) completed 565 cases, representing 1,028
offences prosecuted.[263]
In 2006-7 BERR (the Department for Business, Enterprise and Regulatory
Reform, now part of BIS, the Department for Business, Innovation
and Skills) prosecuted 277 defendants.[264]
Whilst numerically handling far fewer cases than the CPS, nevertheless
the types of work conducted by other organisations may be important
in other ways. For example, the Health and Safety Executive has
a role in the investigation of work-related deaths; Gary Slapper,
Professor of Law at the Open University recently commented in
The Times "Globally, more people are killed each year
at work or through commercial enterprise — more than two
million — than die in wars". [265]
118. The variety of prosecuting agencies in England
and Wales contrasts with that of Scotland, where the Crown Office
and Procurator Fiscal Service has a "monopoly" over
prosecutions, and prosecutes:
"the cases investigated by some fifty reporting
agencies, including the Department of Work and Pensions, Health
and Safety Executive, Department of Trade and Industry, HM Revenue
and Customs, Serious Fraud Office, Television Licensing Authority,
and local authorities".[266]
Thus several of the bodies which carry out prosecutions
in England and Wales, such as the Health and Safety Executive,
operate successfully in Scotland, where they pass cases for prosecution
to the Procurator Fiscal.
119. We discussed with our witnesses whether
the CPS should have, as the Procurator Fiscal has, a monopoly
of prosecution. Robin White, University of Dundee, felt that "thought
should be given to extending the CPS remit, as 'public prosecutor',
to prosecuting all crime".[267]
He was critical of the "variety and haphazardness [that]
exist [in England and Wales], for perhaps 25% of all prosecutions
are still undertaken by government agencies independently of the
police, CPS, and each other, according to markedly different policies".[268]
120. Nicola Padfield, University of Cambridge,
commented that such a question could only start to be considered
now as "in the first 15 years or so in the CPS's life it
was not a body in which there was enough confidence that it could
take on the big umbrella role".[269]
However, she also said that before such an umbrella role could
be considered, it would be necessary to look at:
"the extraordinarily different prosecution policies
of different bodies. If you look at tax bodies, compliance policies
in environmental crimes there are some very interesting differences
between different bodies as to whether they seek to prosecute
or negotiate satisfactory results".[270]
For example, we heard from the Health and Safety
Executive (HSE) that their focus as an organisation might be very
different from that of the CPS. The HSE is "primarily concerned
with ensuring the health and safety of people at work and those
affected by work".[271]
Peter McNaught, Head of the Litigation and Enforcement Team at
the HSE, told us that to achieve that objective they might use
other means than prosecution:
"we will issue many, many more improvement notices
and prohibition notices than we will take prosecutions to court
because that will achieve the aims of the Health and Safety at
Work Act".[272]
121. Stephen Wooler, Chief Inspector of the CPS,
was concerned that, if organisations were making different decisions
about whether to use prosecution or alternative mechanisms, this
could lead to inconsistencies:
"There is a use for alternative disposals [to
prosecution] provided that arrangements are in place that ensure
that each of the different authorities—and this would apply
to prosecution authorities as well—is acting in a broadly
consistent manner. The problem is that where you are dealing with
public health, it is very different from an MTIC fraud. So you
apply the public interest test but the types of factors which
come into play can be very different. It is like apples and pears
but that judgment has to be made as to whether in the final analysis
it is in the public interest to prosecute".[273]
122. Different prosecutors also have different
working arrangements. The Serious Fraud Office noted that, as
specialists in serious and complex fraud, they integrated investigators,
prosecutors and accountants: "The integration of professionals
besides lawyers allows the SFO to proactively and collectively
respond to serious fraud investigations in all types of business
activity".[274]
At the Health and Safety Executive, inspectors "who are effectively
investigators [and] also the prosecutor" undertake:
"a lot of work… giving advice and guidance
and enforcement notices and they have therefore a very good knowledge
of where the benchmark is in terms of where action will bring
about improvement in health and safety without prosecution and
where a prosecution is needed".[275]
123. David Green QC, Director of RCPO, was concerned
that specialisms would be lost in one big organisation. He said:
"if prosecutors were all merged into one monolithic
organisation, specialism and expertise in certain key areas such
as, in our case, fiscal and tax law, customs and smuggling law,
would quickly be diluted and lost… In a large single monolithic
organisation there will always be competing and emerging priorities
at different times, therefore a pressure to shift resources within
that large organisation to that new and emerging priority. If
you have a specialist prosecutor, then of course you have a dedicated
ring-fenced resource within that small area of specialism".[276]
Keir Starmer QC, DPP, was not concerned that specialism
would be lost in a single organisation: "I am not aware that
there is any loss in Scotland in terms of specialism and it is
right to say that we have specialisms within the CPS".[277]
Examples of specialisms within the CPS include the Fraud Prosecution
Service, a national specialist fraud service situated within CPS
London, and specialised casework divisions within CPS Headquarters
for example covering terrorism or organised crime.[278]
124. The Attorney General felt that there were
overarching similarities between prosecutors:
"all the prosecutors … have the same objective
in terms of identifying crime, prosecuting it fairly and successfully
to the benefit of our community. They are all operating in the
same courts, according to the same rules, before similar judges".[279]
Peter Lewis, Chief Executive of the CPS, felt that:
"one of the things the public ought to expect
is that whoever prosecutes them in the public domain there are
similar standards and that those are the best standards for litigating
cases".[280]
There are three individuals with a potential role
in ensuring consistency and transparency in the prosecution arrangements
between different organisations. These are the Attorney General,
the Chief Inspector of the CPS, and the Director of Public Prosecutions.
125. The Attorney General 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
[of RCPO and SFO and the DPP], 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".[281]
Following the review of the Attorney's role there
is a protocol setting out the relationship between the Attorney
and those prosecution services she superintends.
126. The Attorney has a different role with regard
to the three departments of CPS, RCPO and SFO than other organisations
that prosecute:
"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".[282]
The importance of the relationship between the Attorney
General and wider agencies conducting prosecutions appeared to
be a relatively new idea:
"One of the things that came out of the review
of the Attorney General's role [in 2007-8] and the prosecutorial
role is that I came to clearly understand that there was a wider
prosecutorial family which I did not superintend on a statutory
basis, and it seemed to me that there was a huge amount for us
to learn from each other".[283]
The Attorney General was not clear why she had a
different relationship with different prosecutors, telling us
"I think it is historical".[284]
127. Rt Hon Baroness Scotland QC stated
"I also was somewhat surprised to discover that
it was not usual for all of the prosecutors, not even the ones
I statutorily superintend, to come together at one time to talk
about common issues".[285]
She highlighted the work she was now doing:
"In 2008-9 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".[286]
RCPO told us that the idea of this strategic board
"is to ensure that strategy is joined up across the law officers'
departments". [287]
This Board, however, does not involve the broader spectrum of
prosecutors, for whom we were told that the Whitehall Prosecutor's
Group was a key forum.
128. The Whitehall Prosecutors' Group (WPG) is:
"a coming together of senior members of the
various governmental prosecuting authorities for the purpose of
sharing knowledge, discussing and co-ordinating action on issues
of mutual concern and acting as a voice for our members".[288]
It has practitioner sub-groups which look at common
issues such as confiscation and asset recovery or disclosure;
the group also considers training for prosecutors.[289]
The Chair of the Whitehall Prosecutors' Group told us about:
"the co-operation and joint-working that is
facilitated by the WPG in support of the valuable work of all
of the organisations that prosecute on behalf of the government".[290]
Its membership includes a range of prosecutors; the
CPS are invited to attend as an observer.[291]
129. Individual organisations suggested to us
that systems of liaison between them were a valuable way of working
through practice on common issues. David Green QC, Director of
RCPO, said:
"I could give you an example, say on the confiscation
of criminal assets. The people who do that within the CPS and
the people who do that within my organisation liaise regularly
on interpretation of case law, interpretation of statutes, how
to go about things, how much to pay receivers, that kind of thing.
So you end up with a pretty standard approach".[292]
Similarly the Serious Fraud Office told us:
"The SFO liaisies with all relevant Departments
including the other Law Officers Departments, the Serious Organised
Crime Agency (SOCA), the Office of Fair Trading (OFT) and the
Financial Services Authority (FSA) to consider and determine (policy)
issues of related interest, such as Disclosure, Policy for the
prosecution of companies and management of very high cost cases".[293]
The Attorney suggested that her overarching role
could be important in this respect:
"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".[294]
130. The Attorney General also discussed work
she was undertaking with regard to agreements that set out how
the different prosecuting agencies can work effectively side-by-side.
"In 2008-9 the Attorney has sponsored a project to refresh
and re-launch the [Prosecutors'] convention"[295]
The Prosecutors' Convention:
"is a slim document designed to ensure exactly
this, that the most appropriate prosecutor with the right expertise
in the right place takes the case forward. You could imagine you
could get a prosecution which might have a tax angle, it might
have a drug importation angle, it might have a violence angle
and obviously in those cases there is an established mechanism
which works to enable the best placed prosecutor to take that
forward".[296]
As our inquiry started, signatories to the 'current'
Prosecutors' Convention included the Department of Social Security
(the Department of Work and Pensions was created in 2001) and
the Ministry of Agriculture Fisheries and Food (formally dissolved
2002).
131. The Chief Inspector of the CPS also has
a potentially important role. HMCPSI was originally established
as an internal unit of the CPS following a Senior Management Review
in 1995. It became an independent body on 1 October 2000.[297]
By statute HMCSPI also inspects RCPO, and has by agreement inspected
other organisations including the Army Prosecuting Agency and
the Public Prosecution Service (Northern Ireland). The Chief Inspector
told us
"There is perhaps an oddity in that the prosecuting
authorities who are subject to inspection at the moment are the
ones which actually are already superintended and accountable
to Parliament through the law officers whereas the other prosecutors
are not accountable centrally".[298]
The Chief Inspector went on to consider the benefits
of one inspectorate being able to look at a variety of different
prosecuting agencies:
"It is valuable from our point of view as inspectors
that we see how other prosecuting agencies operate, we learn from
that and we can try to cross-fertilise some of the good practice…
The other agencies do benefit from being inspected by somebody
who has looked at a range of other bodies as well".[299]
132. We also heard that the Director of Public
Prosecutions, in terms of his ownership of the Code for Crown
Prosecutors, was important to consistency across prosecutors.
The Attorney General described how:
"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". [300]
When asked about consistency between prosecutors,
David Green QC, Director of RCPO, said:
"first of all … certainly we follow the
Code for Crown Prosecutors".[301]
The Chief Executive of the CPS described how the
Code set out standards for prosecutors:
"most of the other prosecutors do accept that
those [the Code] are the guiding principles which ought to guide
all public prosecutors and that includes the local authority prosecutors
too, so it does represent a broad series of well-tested standards
which ought to apply everywhere".[302]
133. However, it was also clear that the Code
might be used differently by different prosecutors. The Attorney
General notes that while RCPO is required by statute to have regard
to the Code, the SFO is not.[303]
We discussed with RCPO how the public interest test in the Code
might be more likely to include considerations of the public revenue
for them than some other agencies.[304]
We also heard how other agencies might put the Code in the context
of their broader enforcement work. The Health and Safety Executive
told us:
"What we do to try to ensure consistency in
addition to applying the Code for Crown Prosecutors is that we
have our own enforcement policy statement which has some flesh
in the context of health and safety enforcement".[305]
134. We were surprised that
it was only through the recent review of the Attorney General's
role that the Attorney came to the conclusion that different prosecuting
agencies could learn a lot from each other. There seems to be
much good work already undertaken by organisations talking to
each other about matters of common interest and we welcome the
interest the Attorney General is now taking in this work. There
is much the Law Officers could do to guide and provide better
support to such discussions and, in doing so, ensure consistency
of approach across different prosecutors. We emphasise that it
is not only those prosecuting agencies superintended by the Attorney
which have an interest in how prosecuting policy is developed.
135. We believe that the role
of the Chief Inspector of the CPS could successfully be extended
so that he can inspect other agencies conducting prosecution.
We would also like to see the CPS, as the principal prosecutor
and owner of the Code for Crown Prosecutors, demonstrating leadership
within the wider prosecutorial family. The public interest test
may invoke different considerations in different circumstances,
but choices about prosecution across different agencies should
be consistent and transparent.
136. We have not come to the
conclusion that England and Wales should move towards the Scottish
model of a single prosecuting authority. We believe that there
are more pressing priorities for CPS management than such a major
change, but, given the diverse structure of prosecuting authorities,
we regard co-ordination and the sharing of best practice as essential.
255 www.cps.gov.uk/about/ Back
256
Ev 128
The Solicitor General states that RCPO
and the CPS will both continue to exist legally but will be brought
together under one banner for practical purposes. Back
257
Ev 128 Back
258
Ev 62 Back
259
Ev 84 Back
260
Ev 84-5 Back
261
Ev 130 Back
262
Ev 63 Back
263
http://www.hse.gov.uk/statistics/enforce/ Back
264
http://www.berr.gov.uk/whatwedo/businesslaw/criminal-investigations/convictions/page46380.html Back
265
The Times, Corporate manslaughter: making work a much safer place',
11 June 2009 Back
266
Ev 131 [Robin White] Back
267
Ev 131 Back
268
Ev 131 Back
269
Q 34 Back
270
Q 34 Back
271
Q 201 Back
272
Q 206 Back
273
Q 267 Back
274
Ev 127 Back
275
Qq 201, 202 Back
276
Q 202 Back
277
Q 308 Back
278
HMCPSI, Review of the Fraud Prosecution Service, October 2008;
Ev 74 Back
279
Q 394 Back
280
Q 303 Back
281
Ev 61 Back
282
Ev 62 Back
283
Q 389 Back
284
Q 392 Back
285
Q 389 Back
286
Ev 61 Back
287
Q 202 Back
288
Ev 129 Back
289
Ev 129 Back
290
Ev 129 Back
291
Ev 130 Back
292
Q 233 Back
293
Ev 128 Back
294
Ev 62 Back
295
Ev 62 Back
296
Q 242 [David Green QC, RCPO] Back
297
www.hmcpsi.gov.uk Back
298
Q 267 Back
299
Q 271 Back
300
Ev 61 Back
301
Q 203 Back
302
Q 304 Back
303
Ev 61; The SFO website states that it follows "the principles
outlined in the Code for Crown Prosecutors". Back
304
E.g. Q 229 Back
305
Q 206 Back
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