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


Memorandum submitted by Maik Martin

  1.  A principal factor determining the work of the CPS is the test for deciding whether or not to prosecute an alleged offender. This two-pronged test is set out int the Code for Crown Prosecutors: firstly, a prosecution should only be brought where it is more likely than not that, on the basis of evidence admissible in court, a conviction can be secured. Secondly, a prosecution should only be brought where this would be in the public interest. A non-exhaustive list of factors which may be taken into consideration are set out in the Code for Crown Prosecutors.

  2.  The application of the public interest test and its reviewability in the courts should be a focus of the Committee's inquiry as they can affect both the rule of law and public opinion in relation to the operation of the criminal justice system in England and Wales.

  3.  At the current state of the law, crown prosecutors in effect enjoy a largely unfettered discretion as to whether or not to bring a prosection even in cases where there is a high likelihood of a conviction and possibly the imposition of a substantial custodial sentence. A decision not to prosecute (or not even to investigate alleged or potential criminal conduct), whilst theoretically being amenable to judicial review in the Administrative Court, can be successfully challenged in the courts only in the most exceptional circumstances, R (on the application of Bermingham) v Director of the SFO [2006] EWHC 200 (Admin) at paras 63 and 64:

    There is much authority to the effect that the jurisdiction to conduct a judicial review of a public authority's decision to launch or not to launch a prosecution, though it undoubtedly exists, is to be exercised sparingly. Where the decision is to prosecute, this admonition of restraint arises in part at least out of the imperative that criminal proceedings should not be the subject of satellite proceedings which have the effect of delaying the trial: R v Director of Public Prosecutions, ex parte C [1995] 1 CAR 136, especially per Kennedy LJ at 141; R v Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326. Where the decision is not to prosecute, there cannot I think be a different rule; in any event there will have been expert assessments of weight and balance which are so conspicuously within the professional judgment of the statutory decision-maker that there will very rarely be legal space for a reviewing court to interfere.

    Here, of course, the decision sought to be reviewed is a decision not to investigate. The position as regards the judicial review jurisdiction is in my judgment a fortiori a decision whether to prosecute. The authority's (here, the Director's) discretion is even more open-ended. It will involve consideration of the manner in which available resources should be deployed and whether particular lines of inquiry should or should not be followed: Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 per Lord Keith of Kinkel at 59 D-F, summarising R v. Commissioner of Police for the Metropolis, Ex parte Blackburn [1968] 2 QB 118. It is submitted for the Director that absent bad faith or other exceptional circumstances a decision to investigate or not to investigate an allegation of crime is not subject to review. That is not quite right. It looks like an argument to limit the court's jurisdiction of judicial review; but the jurisdiction is as wide or as narrow as the court holds. The true proposition is that it will take a wholly exceptional case on its legal merits to justify a judicial review of a discretionary decision by the Director to investigate or not.

  4.  Contrast this situation with the situation under the German law of criminal procedure: there, the general rule under sections 152(2) and 160(1) of the Strafprozessordnung (StPO, Code of Criminal Procedure) is that the public prosecution service (usually acting through the police) are under an express duty to investigate a case where there are indications that a criminal offence had been committed. Where, upon completion of the investigation, in the judgement of the public prosecutor it is more likely than not that a prosecution would be successful, a prosecution will have to be brought accourding to section 170(1) StPO. There is, as a rule, no public interest test complementing the probability-of-conviction-test in the German system. Where the prosecutor is of the opinion that, on the basis of the evidence before him or her, a prosecution would be unlikely to lead to a conviction and thus formally decides to not prosecute and terminate the criminal proceedings, the victim(s) of the offence have to be notified and have recourse against the decision by way of an appeal to the head of the State prosecution service and, if unsuccessful, further appeal to a Court of Appeal (section 172 StPO). As the decision whether or not to prosecute is concerned exclusively with the prospect of securing a conviction on the basis of admissible evidence, it is fully reviewable by the Court of Appeal.

  5.  However, there are significant exceptions to what is called the principle of legality as described in the preceding paragraph: in relation to purely regulatory offences (Ordnungswidrigkeiten) which are dealt with by administrative agencies under a set of rules different from the rules of criminal procedure, agencies enjoy full discretion as to whether or not to impose a regulatory sanction (generally a fine). The exercise of the discretion not to impose a sanction is reviewable in the courts only in exceptional of circumstances. Another even more significant exception from the strict principle of legality applies to minor criminal offences (equivalent to summary offences, most either way offences and even some indictable offences in English criminal law): in relation to such Vergehen (all criminal offences which do not carry a minimum custodial sentence of at least one year), while there is still a duty to investigate the alleged offence, the prosecutor (in cases of relatively more serious offences only with the consent of the trial court) can discontinue proceedings even before a formal prosecution has been brought where the culpability of the offender is low and public interest does not require a prosecution (sections 153 et seq StPO). In most cases the court can attach certain conditions to this termination of proceedings such as the payment of a sum of money commensurate with the offender's level of culpability. This way of discontinuing proceedings is entirely discretionary and, as a rule, the exercise of the discretion on part of the prosecutor and, in most cases, the trial court, cannot be reviewed by a higher court. Prosecutors and the lower courts use this option frequently and perhaps even in cases which, from a purist's point of view, would be unsuitable for such a somewhat informal solution. It has to be emphasised, however, that in a significant proportion of cases where discretionary (conditional) termination of proceedings is resorted to, a trial judge will have seen the case files and agreed to this course of action being taken. The most problematic excpetion to this rule relates to cases of genocide and certain enumerated serious offences against the state: in these cases the federal Attorney General can order termination of proceedings where bringing a prosecution would be contrary to the public interest without the consent of the trial court.

  6.  Despite these major exceptions to the rule that criminal conduct has to be fully investigated and prosecuted, the principle of legality is considered to be a bedrock of the German criminal justice system.

  7.  While it has to be readily acknowledged that the German and English criminal justice systems and rules of criminal procedure differ significantly in numerous important aspects, the issue of discretion on the part of the prosecution whether to investigate and prosecute an offence is common to all criminal justice systems irrespective of legal traditions. Thus it would be a worthwhile, indeed a very important, exercise to look at the use of prosecutorial discretion by the CPS.

  8.  Unfettered, largely unreviewable discretion as to whether or not to investigate potentially criminal conduct and bring it before a criminal court can be considered an anathema to the rule of law, one element of which is the guarantee of equal application of the law. As the former Senior Law Lord, Lord Bingham of Cornhill, noted in his seminal speech on the rule of law at Camridge University on 16 November 2006:

    The broader and more loosely-textured a discretion is, whether conferred on an official or a judge, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the rule of law. This sub-rule requires that a discretion should ordinarily be narrowly defined and its exercise capable of reasoned justification.

  In hardly any other area of the law will the exercise of discretion on the part of the executive, to which the CPS, with some hesitation, will have to be considered to belong, have a greater effect on the individual and the enjoyment of his or her fundamental right of liberty.

  9.  The application of the second limb of the test as to whether or not to bring a prosecution under the Code for Crown Prosecutors, the public interest test, may, in certain instance, have the flavour of the political, especially where the Attorney General intervenes in proceedings and orders their termination. While rare, these instances have the potential of bringing the criminal justice system into disrepute, as became readily apparent in the notorious al-Yamamah case relating to a decision to halt a criminal investigation by the then Director of the SFO. While the Director's decision has now ultimately been held to be lawful, it has nonetheless left behind a somewhat sour taste.

  10.  As a rule, the application of the criminal law and the decision whether or not to apply the law should generally be left exclusively to the courts whose proper domain the application of the law without fear or favour is. While, not least under valid considerations of the most appropriate use of scarce rseources in the criminal justice system, not all criminal offences should necessarily be prosecuted, the decision whether or not to investigate and prosecute should be subject to an meaningful degree of judicial control. It should be a decision ultimately left to judges to decide whether or not the ordinary course of the law should be disturbed by a decision of the CPS or other prosecution agency not to bring a case to court. It is submitted that the current practice as exemplified in the decision in Bermingham and the al-Yamamah case does not appear to conform to this basic tenet of the rule of law. The courts show a marked, yet rather inexplicable, reluctance to develop and pronounce clear rules as to when criminal proceedings should be brought in order to satisfy the requirements of the rule of law. It should be a matter for the Committee to establish why this is the case and whether this should be remedied by appropriate legislation or other means of rule-making.

  11.  This inquiry provides a rare opportunity to scrutinize the use of the public interest test by the CPS. The CPS should be able to provide the Committee with a breakdown of the number and category of cases in which it was decided either not to investigate or not to prosecute an alleged offence for public interest reasons. Information might also be provided by the CPS in relation to the number of judicial reviews of decisions not to prosecute and the success rate of these proceedings. The Committee should seize this opportunity and consider the demands of the constitutional principle of the rule of law—the equal and predictable application of the law of the land—in relation to the decision to investigate and prosecute alleged criminal conduct and the way the courts should review this decision.

November 2008





 
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