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

Memorandum submitted by the Attorney General


  1.  This memorandum sets out recent developments in the strategic direction of the prosecuting departments, under the leadership of the Attorney General, to assist the Justice Committee in its Inquiry into the role of the Crown Prosecution Service.


  2.  The background to this is that the Directors of the prosecuting departments (which are the Crown Prosecution Service (CPS), the Revenue and Customs Prosecution Office (RCPO), and the Serious Fraud Office (SFO)) exercise their statutory functions subject to the superintendence of the Attorney General. The Attorney General is accountable to Parliament for their work. She 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, 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.

  3.  The Prosecution of Offences Act 1985, which created the Crown Prosecution Service, preserved the right for others to prosecute. The Criminal Justice Act 1987 created the SFO and the Commissioners for Revenue and Customs Act 2005 created RCPO. The CPS prosecutes cases brought by the police, immigration officers and SOCA, the RCPO cases brought by HMRC and SOCA, and the SFO cases which come within their published criteria and which they accept for investigation. 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. There is a Director of Service Prosecutions who leads the prosecution capability of the three Armed Services. There are other specialist prosecutors linked to departments or agencies with some responsibilities for enforcing some aspects of the criminal law, typically in a regulatory environment, such as the Health and Safety Executive.


  4. In 2007-08 the Government consulted on the role of the Attorney General. Following this consultation, the Government concluded that there was no need for fundamental change to the responsibilities of the Attorney General, nor to the basic structure of the relationship between the Attorney and the Directors. However it was identified that there was a need for reform to clarify the way in which the relationship operates, to safeguard the independence of prosecution decisions and to confirm and safeguard the Attorney General's accountability to Parliament. The Government proposed that the Attorney General be required, in consultation with the main prosecuting authorities, to produce a protocol setting out how their relationship would operate. The Government also proposed some rationalisation of the offences for which consent to prosecution is required by the Attorney or the DPP and a commitment that the Attorney would no longer have a power of direction in relation to prosecution decisions (or in the case of the SFO, investigation and prosecution decisions) save in very exceptional circumstances involving national security. It was also proposed that the Attorney General should not routinely attend meetings of Cabinet.

  5.  In 2008 the draft Constitutional Renewal Bill, which would give effect to these and other reforms, was subject to pre-legislative scrutiny. At the same time the Attorney has been working with the Directors on the protocol, which covers: general responsibilities; strategy, planning and performance; responsibility for prosecution decisions; development of policy; dealing with the media; and dealing with complaints. It will provide, for the first time, a clear and transparent framework for the relationship between the Attorney General and the prosecuting departments. While the draft legislation makes provison for the protocol, the protocol does not need to be on a statutory footing.

  6.  The Attorney General has, in parallel, been taking forward a number of other reforms to the operation of the relationship between herself and the Directors and their relationship with each other and with other prosecutors.

  In 2008-09 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. The Board oversees strategy, reviews and monitors financial management and performance, oversees the development and delivery of Spending Review submissions, encourages joint work where appropriate, and identifies and pursues opportunities to achieve maximum efficiency and effectiveness. The Attorney's responsibilities, and the membership of the Strategic Board, extend more widely to the Law Officers' Departments as a whole, including the Treasury Solicitor's Department, Her Majesty's Crown Prosecution Service Inspectorate, the National Fraud Strategic Authority and the Attorney General's Office itself, but this memorandum concentrates primarily on the strategy for the prosecuting departments.

  7.  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, for example through the shared Prosecutors' Action Zone on the GLS website, LION. There is some work in hand looking at the arrangements for prosecution across the GLS, which will feed into the Law Officers' Departments Strategy Programme's examination of the prosecution landscape and its fitness for the future, see below.

  8.  The Attorney supports and encourages collaboration, coordination and joint working between the prosecutors. She oversees and coordinates legal and practice issues, both domestic and international, which cross over departments and affect all prosecutors. 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. To ensure consistency of practice across prosecutors generally the Attorney General may issue guidelines. (Examples of the kind of area where guidelines may be needed include plea negotiations in fraud cases, on which the Attorney General consulted in 2008.)

  9.  Another mechanism for coordination is the Prosecutors' Convention, a document to which a large number of prosecuting authorities are signatories. Its purpose is to require prosecutors to be proactive in overcoming the problems that can arise where more than prosecuting authority wishes to proceed against the same individual or company for related offences. The Convention encourages prosecutors to co-ordinate their interests and develop an agreed prosecutorial strategy with, wherever possible, one prosecutor in the lead and a single (joint) prosecution. The Convention also requires prosecutors to agree practical points such as mechanisms for information sharing, disclosure and press handling. The Convention works on the basis that prosecutors should develop effective lines of communication from an early stage. In 2008-09 the Attorney has sponsored a project to refresh and re-launch the Convention, including a workshop attended by over 40 prosecutors from prosecuting authorities as diverse as the Civil Aviation Authority, Maritime and Coastguard Agency, FSA, DEFRA, SOCA, Office of Fair Trading as well as the statutory prosecutors. The revised Convention should be adopted shortly.

  10.  The role and expectations of the independent prosecutor have evolved considerably since the CPS, and in their turn the SFO and RCPO were set up. The fair and effective prosecution of offenders is a more important, more demanding and more sophisticated job than it has ever been. Crime crosses borders and exploits new technology. Prosecutors need to develop the specialist knowledge and skills to take forward ever more complex cases. They need also to be able to work across many organisational boundaries, as crime is increasingly multi-faceted. For example, human trafficking may involve offences relating to employment law, non-compliance with the National Minimum Wage, immigration offences, drugs, money laundering, sexual exploitation and/or violence, requiring investigators and prosecutors to work in an increasingly joined up way. Prosecutors need also to engage with their communities to ensure that their public interest decisions are properly informed by the public's concern about crime.

  11.  The prosecutors have an important position as gatekeepers to the criminal justice system, working ever more closely with investigators to ensure that prosecutions go forward with the best chance of success; as well as advising on and implementing non-prosecutorial disposals. A close, professional and robust relationship between the prosecutors and the investigators is an increasingly important aspect of justice. Early involvement of the prosecutors in an investigation helps investigators to develop an investigation strategy which enables a case to be built up effectively towards prosecution, or to identify early where an investigation is unlikely to be successful, with assessment given to the use of alternatives and ancillary orders and for example for assets to be restrained as necessary sufficiently early, to be recovered more effectively in due course. A good example of the benefits of early and close involvement is the recent prosecution in the Rhys Jones case. Eleven year old Rhys Jones was tragically shot on 22 August 2007. The next day a CPS Crown Advocate was nominated as the reviewing lawyer. After a painstaking evidence-gathering exercise, during which the CPS reviewing officer worked closely with the investigating police officers, the CPS took the decision to charge a number of individuals, all of whom were later convicted. Throughout this period, the reviewing officer made and maintained contact with Rhys Jones' parents, providing them with updates and clarification. And, ultimately, the reviewing officer, a Crown Advocate, was second junior at the trial. Prosecutors also have a role in sentencing: CPS advocates prepare a Plea and Sentence Document in Crown Court cases and appropriate cases in the magistrates' courts. This document identifies aggravating and mitigating factors in the case as well as relevant statutory provisions and case law.

  12.  The Attorney sees an important role for the CPS in taking forward the equality and diversity agenda, including ensuring that prosecution decisions are made fairly and proportionately. The CPS has commissioned independent equality impact assessments of charging decisions since 2004-05. The purpose of these assessments is to produce an analysis of prosecutors' charging decisions by principal categories for `like for like' offences, comparing outcomes by ethnicity, age, gender and disability. These assessments have been built upon year on year so that the data analysed and conclusions that can be drawn have become increasingly robust and comprehensive. In 2007-08, there was no variation of charging decision by the main ethnic group of the suspect; and no significant variation in charging decisions by gender. There were some trend differences for specific groups. There were differences between age groups, with older people significantly less likely to receive a charge than younger age groups. The disability data was not robust enough to draw conclusions. CPS is committed to further improve data collection and better understand some variations that have been identified. However, given the very important gatekeeper role that CPS performs in the CJS, these assessments provide a reassuring level of fairness and proportionality of the decisions made by the CPS and the role of CPS lawyers' decisions in helping correct and reduce disproportionality in the system, which we know to be a challenging and enduring area. The CPS has also shown leadership within the criminal justice system on responding to hate crime, ensuring that vulnerable members of society receive justice, and prosecutors continue to work in partnership to help to protect the interests of victims and witnesses. In setting the strategic direction for the prosecutors, the Attorney continues to emphasise the importance of the independent prosecutor, providing fair and objective decisions, to enable the criminal justice system to deliver positive outcomes, reducing crime and protecting the public.


  13.  The Attorney emphasises also the need to ensure that prosecution services are delivered with maximum efficiency. The Law Officers' Departments have the smallest budget of any department in Whitehall. In 2008-09 the overall settlement for the Law Officers' Departments was £722.8 million. It was distributed as follows:

  (Note-TSol is largely funded on a net recovery basis, with a relatively small amount of annual budget received from Parliamentary Vote for three specific areas of work, plus the AGO and HMCPSI. The NFSA is funded by around £12 million over three years from the CSR allocation of an additional £29 million over three years to implement specific recommendations from the 2006-07 Fraud Review).

  This demonstrates that the CPS is by far the biggest player in delivery of prosecution services, which is underlined further by a comparison of workload data (here based on 2007-08 figures):

Mags Courts
cases 2007-08
Crown Court
cases 2007-08

CPS966,62696,992 4,090£65 million
RCPO1,018270 485£21.1 million
SFON/A16 14£1.1 million

  14.  In the CSR period 2008-11 the Law Officers' Departments have a challenging settlement, with a target to deliver 5% efficiency savings, and have now, with the rest of Government, been set a further challenge to find their share of the additional VFM efficiencies of £5 billion for 2010-11. There is clearly some scope to find efficiencies from greater sharing of back office and other services. Because of their small size the Law Officers' Departments have already developed a complex of arrangements to assist each other to achieve their business objectives, which include some sharing of services and, on occasions, loans to manage variation of spending against plans. The aim now is, urgently, to find more systematic and long term shared arrangements in order to achieve even greater efficiencies.


  15.  The current arrangements for delivering prosecution services in England and Wales have developed over time and in response to particular challenges, reviews and reports. As identified above, there remains a need, more than ever, for expert provision for the most complex cases as well as for a community facing approach responding to the vast majority of cases, which may be legally more straightforward but which touch the lives and concerns of the public day to day. The current arrangements are capable of delivering this, particularly within the coordinating framework provided by the Attorney General as described above. But the Attorney has agreed with her Strategic Board that the time is right to examine the current arrangements critically, against an assessment of current and future crime trends and investigative priorities and bearing in mind increasing constraints over public expenditure, and to implement such changes as may be necessary to provide effective and efficient prosecution services for the future.


  16.  Accordingly the Attorney is leading a Strategy Programme, involving all the Directors, which is, among other things, examining both the effectiveness and efficiency of current case flows and assessing the likely future demand for prosecution. It is this analysis that will enable an evidence based decision to be taken as to the most effective and efficient delivery model for prosecution going forward. Announcements about conclusions from the Programme will be made as they emerge.

Rt Hon Baroness Scotland of Asthal QC

March 2009

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