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


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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