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

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 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 Back

264 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 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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