Memorandum submitted by Robin M White
1. I am a Senior Lecturer in Dundee Law
School, and have undertaken research into criminal justice issues,
with emphases on intra-UK comparisons. Prosecution institutions
and "alternatives to prosecution". I am also a Justice
of the Peace and member of the Scottish Justices Association Executive
Committee.
2. I offer observations on:
(a) how the Crown Prosecution Service (CPS) appears
to have benefitted from increased similarity to the Crown Office
and Procurator Fiscal Service (COPFS) and might further benefit;
(a) implications of the considerable increase
in use of certain "alternatives to prosecution", ie
"conditional offers" and "decriminalisation"
in recent years.
3. Appendix A outlines the Scottish prosecution
system; Appendix B gives the legal authority for the role of the
police in it; Appendix C lists articles produced by my research.
(A) SCOTTISH
COMPARISONS
4. The Auld Report (Review of the Criminal
Courts of England and Wales TSO, 2001, ch 10, para 44) concluded
the CPS "[had] still to fulfil its proper role which | should
be closer to the more highly regarded Procurator Fiscal in Scotland
|".
5. Four important differences between the
Scottish and English prosecution systems are:
(i)the role of the police;
(ii)prosecutorial monopoly;
(iii)professional prosecution of serious crime; and
(iv)depoliticisation of Law Officers.
The role of the police
6. England has no tradition of public prosecution,
but a strong tradition of private prosecution. This produced two
particular effects. Firstly, as genuinely private prosecution
was inefficient, when the modern police were created, they gradually
took the function over and, acting as nominally private prosecutors,
initiated most prosecutions. Secondly, the police employed solicitors
to actually undertake prosecutions, making these solicitors "handmaidens
to the police" (L. Zedner Criminal Justice, Oxford
UP, 2004, pp 149-151). To a considerable extent, the recent history
of prosecution in England and Wales has been an attempt to escape
this relationship.
7. Police control of prosecution, though
purely contingent, became regarded as normal, but the Philips
Commission (Report of the Royal Commission on Criminal Procedure,
Cmnd 8092, 1981) concluded the resulting variety and haphazardness
produced a poor standard of prosecution. It therefore formulated
the "Philips principle", that is, that prosecutor should
be independent of investigator (ie, police). This resulted the
CPS. However, the Commission compromised the principle by recommending
the police continue initiating prosecutions. This meant the CPS
did not wholly escape being "handmaidens". Consequential
problems were visible in several reports on the CPS. Auld (Review
of the Criminal Courts of England and Wales (TSO, 2001) specifically
noted that most prosecution problems he identified were "due
to the fact that the police, not the [CPS] initiate prosecutions"
(ch 10, para 37) concluding CPS should be more like COPFS.
8. In Scotland the police have always been
subordinate to the prosecutor, because public prosecution predated
the police. The principle is enshrined in common law (Smith
v HMA 1952 JC 66, Boyle v HMA 1976 JC 72), and reflected
in statute (Police (Scotland) Act 1967, s 17(1)(b),(3) proviso,
and Criminal Procedure (Scotland) Act 1995, s 12). Thus, the prosecutor:
(i)as "master of the instance", has always
decided who to prosecute, on what charge and in which court;
(ii)can require the police to carry out further investigations;
and
(iii)can obtain his or her own statements ("precognitions")
from witnesses, including police witnesses.
9. Auld produced "statutory charging"
(Criminal Justice Act 2003, Part 4), whereby the CPS itself is
prosecutor for some offences, and issues guidelines for prosecution
of other offences.
10. Thus thought should be given to further
police subordination.
Prosecutorial monopoly
11. In England and Wales, variety and haphazardness
still exist, 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, sometimes only
available from annual reports, if at all. These different policies
remain a subject of considerable debate. Philips acknowledged
the difficulty, but declined to deal with it, concluding the variety
too great. However, the history of investigation and prosecution
by one of the main remaining prosecution agencies, HM Customs
and Excise Solicitor's Office does not suggest that non-incorporation
into CPS was justified (see eg Butterfield Enquiry (Review
of Criminal Investigations and Prosecutions Conducted by HM Customs
and Excise by Mr Justice Butterfield, HMCE, 2003), and it
can be argued that HMCE's difficulties flowed from failure to
adopt the "Philips principle". Recent Public Accounts
Committee Reports in relation to HMCE's successor (House of Commons
Public Accounts Committee "Revenue and Customs Prosecution
Office" Fifty-first Report of Session 2007-08, HC 601,
2008 and "HMRC: Tackling the Hidden Economy"
Fifty-fifth Report of Session 2007-08, HC 712, 2008) re-iterate
that difficulties remain.
12. In Scotland the Crown Office and Procurator
Fiscal Service (COPFS) 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.
13. Thus, thought should be given to extending
the CPS remit, as "public prosecutor", to prosecuting
all crime.
Professional prosecutors of serious crime
14. In Scotland, prosecution of very serious
crime (before the High Court of Justiciary), and approval of all
prosecutions of serious crime, has always been undertaken by Advocates-Depute,
appointed by the Lord Advocate for a period of years, traditionally
from the Bar. There has thus always been a cadre of professional,
albeit temporary, senior prosecutors. This feature is being re-inforced,
as Advocates-Depute are now appointed from within COPFS, and for
lengthier periods. Moreover, both current Law Officers are solicitors,
appointed from within COPFS.
15. In England and Wales, prosecution of
serious crime has been undertaken by barristers in private practice,
on the ground of the need to preserve the independence of the
Bar, and the possible susceptibility of professional prosecutors
to "prosecution-mindedness". Neither justification seems
plausible. The existence of Advocates-Depute has never been argued
to compromise the independence of the Scottish Bar, or taint prosecutions
with "prosecution-mindedness". Moreover, "prosecution-mindedness"
would apply to all crime, thus argue against the existence of
the CPS.
16. So it is not clear that any objection
can be taken against CPS prosecutors undertaking the full range
of prosecutions.
Depoliticisation of Law Officers
17. Inherent tensions in the office of Law
Officer were discussed by this Committee recently (House of Commons
Constitutional Affairs Committee Constitutional Role of the
Attorney General Fifth Report of Session 2006-07, HC 306,
2007). Written evidence taken from the Lord Advocate did not fully
disclose increasing depoliticisation. Both current Law Officers
are career prosecutors, appointed from COPFS, rather than lawyer-politicians;
neither is an MSP; and the Lord Advocate has served in both Liberal
Democrat/Labour and SNP Executives.
18. It may be that this is a model for English
Law Officers.
(II) "ALTERNATIVES
TO PROSECUTION":
"CONDITIONAL OFFERS"
AND "DECRIMINALISATION"
19. "Alternatives to prosecution"
include "Conditional Offers" and "Decriminalisation".
Both constitute "punishment without prosecution", transferring
considerable power from the courts. Both have expanded to become
normal means of dealing with much crime. This represents the biggest
change in the criminal process for a century or more, which may
not be exhausted yet. Reasons for using them have expanded from
coping with numerous minor regulatory offences by routinisation,
to asserting that many "real crimes" (including assaults,
breaches of the peace and thefts), simply do not justify a court
appearance, and that alternatives may be more rehabilitative,
anyway. The Scottish experience (where probably less than 25%
of criminal cases are now dealt with by courts) is greater than
the English so, given the expanding role of the CPS as "public
prosecutor", may be useful.
Nature of "conditional offers"
20. Conditional offers are highly institutionalised
plea bargains, redefining the guilty plea to avoid recourse to
the courts, thus transferring more power to prosecutors who, though
party to the proceedings, become "surrogate judges".
For an existing criminal offence, an enforcement agency offers
immunity from prosecution to an alleged offender, provided s/he
accepts a specified penalty. There is no obligation to accept
the offer, although it may be necessary to "opt-in",
or "opt-out". To encourage acceptance, the penalty may
be less than a court might impose, and no criminal record may
result. If the offer is not taken up, prosecution may occur. Examples
may be camouflaged as "fixed penalties".
UK growth
21. UK growth of "conditional offers"
commenced 50 years ago with mere, regulatory, parking offences,
issued by traffic wardens, and requiring "opting-in"
(Road Traffic and Roads Improvement Act 1960). They now apply
to a wide range of road traffic offences, including endorseable
ones, are backed by wheel-clamping, multiplied by 1.5 if unpaid,
and require "opting-out" (Transport Act 1982).
English growth
22. Examples going beyond "regulatory",
to "real" crime, include police "on-the-spot-fines",
requiring "opting-out" (Criminal Justice and Police
Act 2001) and conditional cautions, requiring CPS decision, and
preserving "opting-in" (Criminal Justice Act 2003).
Scottish growth
23. Scotland has been more radical. "Fiscal
fines" (Criminal Justice (Scotland) Act 1987) apply to all
summary offences, and penalties have increased from £25,
to a maximum of £300, with "opting-in" replaced
by "opting-out". Also, for all summary offences, there
are now "fiscal compensation orders" up to £5,000,
requiring "opting-out", and "fiscal work orders"
of 10-50 hours, requiring "opting-in" (Criminal Procedure
(Scotland) Act 1995, amended by Criminal Procedure, Etc, (Reform)
(Scotland) Act 2007). This may represent the future.
Doubts
24. Conditional offers may be cheap, and
might rehabilitate, but come at a price:
(i)presumption of innocence: "opting-out"
constitutes "deeming guilt by silence", for failure
to reply timeously removes the chance of a court hearing, and
accepts the penalty (and even "opting-in" is backed
by encouragements to forego asserting innocence);
(ii)due process: a party to the proceedings, whose
principal function is not sentencing, and exercises wide discretion,
as "surrogate judge" sentences an accused who may be
unrepresented, nor have any clear opportunity to present a plea
in mitigation;
(iii)variety and haphazardness: guidelines for selection
of cases for conditional offers (including repeat offers) may
be non-statutory, vague, or even unpublished, re-creating the
problem the Philips Commission sought to remove;
(iv)accountability: individual decisions not taken
in open court, so are not subject to public scrutiny, and Law
Officers' answerability to Parliament hardly meets the case.
Decriminalisation
25. "Decriminalisation" is a further
step in "punishment without prosecution". By sleight-of-hand,
there is no criminal offence, so no possible prosecution, but
a penalty is imposed, which is exacted by civil proceedings, thus
avoiding all the protections of criminal procedure. This device
includes "decriminalised" parking offences, but also
"civil penalties" and the like in other areas of law,
such as tax, immigration and environmental law, as well as ASBOs,
etc.
26. There is doubt, at least in some cases,
whether the law fulfils the requirements of Article 6 ECHR (right
to a fair trial). In International Transport Roth GmbH and
others v Secretary of State for the Home Department [2002]
EWCA Civ 158, "carriers' liability" penalties were found
in breach of Article 6 and had to be changed.
Paradigm-shift
27. The rise of conditional offers and "decriminalisation"
are part of a largely unremarked paradigm-shift in criminal justice.
The orthodox view is that in a liberal-democratic state, the paramount
concern is "due process" in open court for "it
is better that ten guilty people go free than one innocent person
be convicted". Devices such as "conditional offers"
and "decriminalisation", no doubt sometimes assisting
rehabilitation. However, they do indicate a shift to a managerial
"crime control" view, where rapid, cheap processing
of suspects is the paramount value; trials, or even guilty pleas,
indicate failure of the system; and the ideal is avoidance of
at least summary criminal proceedings altogether.
28. The Committee may wish to consider this
paradigm-shift.
January 2009
APPENDIX A
THE SCOTTISH PROSECUTION MODEL
CROWN OFFICE
AND PROCURATOR
FISCAL SERVICE
("COPFS")
COPFS is the latest manifestation of a tradition
of public prosecution predating the United Kingdom. It has, to
all intents and purposes, a monopoly of initiating and carrying
out prosecutions in Scotland. Since devolution, it has been a
department of the Scottish Executive.
THE LAW
OFFICERS—LORD
ADVOCATE AND
SOLICITOR-GENERAL
FOR SCOTLAND
The Lord Advocate is Ministerial Head of COPFS,
with the Solicitor-General for Scotland as depute. Since devolution,
both Law Officers are members of the Scottish Executive (Scotland
Act 1998, s44((1)(c)) (the Lord Advocate being "of Cabinet
rank"). Both are appointed by the Queen, on the recommendation
of the First Minister, with the agreement of the Scottish Parliament
(s48(1)), but the Parliament cannot remove the Lord Advocate as
head of the criminal prosecution system (s29(2)). Neither Law
Officer is required to be an MSP, but either may participate in
proceedings of the Scottish Parliament, ex officio, though
may decline to answer questions on the criminal prosecution system
if contrary to the public interest (s27(1),(3)).
The Lord Advocate is responsible for the prosecution
of all crime in Scotland, and all crime tried before a jury is
prosecuted in the name of the Lord Advocate (cases being cited
"HM Advocate [or HMA] v |"). Both
current Law Officers, unlike any of their predecessors, are solicitors,
appointed from within COPFS, so are career prosecutors, not lawyer-politicians.
Neither is an MSP and the Lord Advocate has served in both Liberal
Democrat/Labour and SNP Executives.
ADVOCATES-DEPUTE
Normally, neither Lord Advocate nor the Solicitor-General
prosecutes in person. Thus the most serious crime, tried before
the High Court of Justiciary, has always been prosecuted by Advocates-Depute
("Crown counsel"). Advocates-Depute are also responsible
for the preparation of all cases reported to Crown Office for
prosecution by solemn procedure, including drafting the indictment,
and producing the "precognition" (ie case file), as
well as actually conducting prosecutions.
Advocates-Depute have traditionally been members
of the Scottish Bar, holding part-time three year, appointments
from the Lord Advocate, and the office has been seen as a stepping
stone to the Bench. However, Solicitor-Advocates from COPFS are
now appointed, and the total has recently expanded to over thirty.
Thus there is a career path as professional prosecutor of major
crime.
CROWN AGENT
The Crown Agent is principal legal advisor to
the Lord Advocate, and chief executive of COPFS, so is its civil
service head. He has administrative control over procurators-fiscal,
but cannot give directions in relation to prosecutions. The post
is thus not equivalent to the Director of Public Prosecutions.
PROCURATORS-FISCAL
Procurators-Fiscal, currently some 400, are
appointed by the Lord Advocate. They are organised in eleven Areas,
based on police force boundaries, sub-divided into 48 Districts.
Normally solicitors, a few are solicitor-advocates or advocates.
They have a monopoly of prosecution in Sheriff
Courts and District Courts. Police report crime to them, and they
"mark" and conduct cases for summary prosecution before
Sheriff Court and District Court, and undertake initial preparation
of cases for solemn proceedings, completed within Crown Office
under the supervision of an Advocate-Depute. Summary cases are
cited in the name of the District Procurator-Fiscal (eg "Bott
v |"). Procurators-Fiscal are thus career prosecutors
for the normal run of crime.
APPENDIX B
LEGAL AUTHORITY FOR THE ROLE OF THE POLICE
IN PROSECUTION IN SCOTLAND
Smith v HMA 1952 JC 66, per Lord
Justice-Clerk Thomson at 71:
"When a crime is committed it is the responsibility
of the Procurator-fiscal to investigate it. In actual practice
much of the preliminary investigation is nowadays | increasingly
conducted by the police under the general supervision of the Fiscal
| However, the duty of the police is simply one of investigation
under the supervision of the Procurator-fiscal and the results
of the investigation are communicated to the Procurator-fiscal
as the inquiries progress. It is for the Crown Office and not
for the police to decide whether the results of the investigation
justify prosecution. The two functions are quite distinct".
Boyle v HMA 1976 JC 32, per Lord
Cameron at 37:
"In Scotland the master of the instance
in all prosecutions for the public interest is the Lord Advocate.
It is for him to decide when and against whom to launch prosecution
and upon what charges. It is for him to decide in which Court
they shall be prosecuted. It is for him to decide what pleas of
guilt he will accept and it is for him to decide when to withdraw
or abandon proceedings".
Police (Scotland) Act 1967:
Section 17: General functions and jurisdiction
of constables.
(1) | it shall be the duty of the constables
of a police force—
| (b) where an offence has been committed
| [to] |make such reports to the appropriate prosecutor, as may
be necessary for the purpose of bringing the offender with all
due speed to justice;
(3) | in relation to the investigation of
offences the chief constable shall comply with such lawful instructions
as he may receive from the appropriate prosecutor."
Criminal Procedure (Scotland) Act 1995, s 12
Section 12: Instructions by Lord Advocate as
to reporting of offences.
"The Lord Advocate may, from time to time,
issue instructions to a chief constable with regard to the reporting,
for consideration of the question of prosecution, of offences
alleged to have been committed within the area of such chief constable,
and it shall be the duty of a chief constable to whom any such
instruction is issued to secure compliance therewith."
APPENDIX C
RELEVANT RECENT ARTICLES
The Career Path of Recent Scottish Law Officers
2006 Scots Law Times 144-147.
Investigators and Prosecutors, or Desperately
Seeking Scotland: re-formulation of the "Philips principle"
(2006) 69 Modern Law Review 143-182.
The Career Path of Recent Scottish Law Officers
Revisited: Lord Advocate becomes solicitor, solicitor becomes
Lord Advocate, and other surprises 2007 Scots Law Times
223-227.
Parking's Fine: the enforceability of "private"
parking schemes 2007 Juridical Review 1-25.
Out of Court and Out of Sight: How Often are
"Alternatives to Prosecution" Used? (2008) 12 Edinburgh
Law Review 481-486.
The Summary Criminal Procedure (Abolition) (Scotland)
Act 2007? A Critical Look at Part 3 of the Criminal Proceedings,
Etc (Reform) (Scotland) Act 2007 2008 Juridical Review
215-240.
"Decriminalisation: a pernicious hypocrisy?"
(2009) 13 Edinburgh Law Review 112-116.
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