Conclusions and recommendations |
Central to the Criminal Justice System
1. 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.
2. 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.
Defining the role of the prosecutor
3. The CPS needs to take a bold and robust approach as the independent prosecutor. Part of that role is challenging the police to do better. The CPS is not a minor partner in the criminal justice system.
4. There is much to commend in the collaborative approach being taken by the police and the CPS, which helps to raise overall standards through understanding the challenges and expertise of other agencies. While such arrangements are working well we do not see the need for the CPS to have powers such as those of the Procurator Fiscal to direct the police. The debate about whether the CPS should have such powers has to be seen in the light of the increasing development of joined up working between the police and the CPS at earlier stages of an investigation. In theory this could raise a question over the way in which the CPS will be expectedat a later stageto make an independent decision about whether or not to prosecute but in practice it seems better to have that relationship throughout an investigation as long as both sides are clear that joint working must not blur the distinction between the police responsibility to investigate, and the CPS responsibility to take the decision about prosecution and to manage any subsequent process. Oversight of this relationship is clearly a matter for the inspection and scrutiny processes.
5. We heard strong support on grounds of principle for the charging decision to rest with the prosecutor. We also heard concerns that the arrangements for statutory charging had resulted in delays. Nevertheless, these considerations did not lead us to a conclusion that statutory charging should be wholly or partly abandoned. There is clearly a willingness on behalf of the CPS and the police to resolve what are significant practical problems.
6. CPS Direct provides a telephone and IT based 'remote' service, which appears to be well regarded by its users and we hope that it can contribute to the consistency and ease of access to legal advice provided for the police. However, this service should not be assumed to be a substitute for local engagement
and should operate within the context of a good working relationship and mutual understanding between the police and the CPS at a local level.
7. The decision as to what offence an individual is charged with is pivotal, with significant implications for the rest of their journey through the criminal justice system. It also goes to the heart of what that system is trying to achieve; we are not trying to maximise conviction rates, we are trying to maximise convictions of guilty people for the crime they have committed. While perceptions of both under- and over-charging may be inevitable, they are nonetheless damaging to public confidence. The Attorney General should consider what evidence is required to monitor the extent of under- and over-charging, and how this data could be best collected.
8. An effective and ongoing evaluation of the extent to which under- or over-charging happens is important not least because of what it tells us about whether plea bargaining is happening. Expanding the use of plea bargaining would have significant consequences and in our opinion needs the utmost care and consideration. We must not drift towards a situation where it is commonplace without discussing whether it is desirable and, if so, what safeguards must be put in place for defendants, victims and the public.
9. Conditional cautions are part of a significant change to how the criminal justice system operates, making a material difference to the process by which the state punishes people. The fact that prosecutors can now recommend that an individual be conditionally cautioned, and a prosecution suspended subject to the fulfilment of particular conditions, represents a significant change to the prosecutor's role. On the other hand if such decisions prevent an individual being drawn further into the criminal justice system, and therefore succeed in reducing the likelihood that they will re-offend, that is in the interests of potential victims and society as a whole, as well as having a benefit to the individual. Such decisions can therefore contribute to the responsibility of the CPS to reduce re-offending.
10. However, the growth in the number of out-of-court disposals represents a fundamental change to our concept of a criminal justice system and raises a number of concerns about consistency and transparency in the application of punishment. Different patterns of fines may simply reflect local priorities and be argued to be a feature of community engagement. However, we believe the use of these disposals requires systematic scrutiny, and we recommend that as a first step they should be the subject of a multi-inspectorate review. The Attorney General should assemble a comprehensive map of the offences and relevant penalties in operation across England and Wales to assist this scrutiny.
11. The development of CPS advocacy cannot simply be seen as the next logical step in how the CPS should develop: it has wider implications for the criminal justice system and will lead to a very different organisation from that which was originally set-up.
12. While the representatives of the Criminal Bar Association clearly saw this issue in terms of the interest of their members, we recognise that the consequences of CPS advocacy on the future provision and quality of legal services as a whole require attention. The idea of advocates moving more freely between employed and self-employed work is an attractive one, not least because it would preserve the benefits of experience of both prosecution and defence work, which probably produces better advocates.
13. We do not dismiss the anecdotal concerns raised from a number of quarters about the quality of CPS advocates and the systems for their deployment, such as allegations that complex cases are dumped on self-employed barristers at short notice, but regard this as evidence of a need for better case management by the CPS, rather than providing a general argument against CPS advocacy. We welcome the Chief Inspector's reports into CPS advocacy and case preparation and the evidence basis this provides for developing the quality of CPS advocacy and ensuring effective systems across the CPS to support this, and we look forward to considering the responses of the CPS and the Bar.
Prosecutors and victims
14. 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.
15. 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.
16. 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.
17. 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.
Consistency and local discretion
18. Inconsistency in CPS delivery was a clear theme in the evidence we received and must be tackled. Failures to define clearly the role of the prosecutor, and the pressures pushing and pulling it in different directions, militate against priorities for consistent delivery. The definition of a clear role should include the CPS's contribution to the overall aims and delivery of an effective criminal justice system. The development of community prosecutors is a further fundamental change to what we expect from prosecutors in the criminal justice system, raising questions about what kind of local discretion is desirable and beneficial to the public interest. The Attorney General should make a clear statement of how local responsiveness can be made compatible with the demands of natural justice for system-wide consistency.
The public prosecution landscape
19. 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.
20. 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.
21. 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.