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


Examination of Witnesses (Question Numbers 220-239)

DAVID GREEN QC AND PETER MCNAUGHT

10 FEBRUARY 2009

  Q220  Mr Tyrie: The reason I am asking is that whereas the evidential base for your drug smuggling cases may be relatively straightforward, your evidential base for income tax fraud, for example, may be very complicated and very difficult and expensive to pursue. Am I right?

  David Green: Pursue from an investigative point of view or a prosecution point of view.

  Q221  Mr Tyrie: Prosecution perspective.

  David Green: We are properly resourced and we have a number of very complex cases on hand at any one time.

  Q222  Mr Tyrie: That was not a very informative reply. I will try to come at it from a slightly different angle. Do you never find yourself engaged in discussions about a trade-off between whether it is worthwhile prosecuting and what effect it will have on the revenue?

  David Green: Once we receive material from HMRC with a view to prosecution, we will look at it and we will apply the code test. The public interest will undoubtedly come into it because that is part of the code test, but generally speaking it depends on the quality of the evidence.

  Q223  Mr Tyrie: What I am trying from all different angles now to get at is that before you were created this discussion, which I am trying to suggest may still be taking place—though I have not yet been able to elicit whether it does—used to take place internally within Customs and Revenue.

  David Green: Yes.

  Q224  Mr Tyrie: They would ask themselves whether it was worth the candle because prosecution was very expensive and they would ask what exemplary effect it would have on the yield elsewhere.

  David Green: That would be a decision taken on their side before they refer it to us.

  Q225  Mr Tyrie: Before they refer it to you at all?

  David Green: Yes.

  Q226  Mr Tyrie: You have no involvement in that whatsoever?

  David Green: We may well be involved in a case early on, if we are asked whether an investigation is worth taking forward. As prosecutors we could say that they will need to prove X, Y and Z. Certainly we would be involved in that way. That is how the system works.

  Q227  Chairman: You have given us two different descriptions of what happens in practice actually. One is not being involved early on and Revenue and Customs coming to you with a file and asking you to prosecute and you looking to see whether you can. The alternative is doing what the CPS now say they do, which is to be involved early on, the day their officer walks into the police station with the beginnings of the investigation, then saying to the officer that what he really needs to do if you are going to prosecute this successfully is X rather than Y. In Scotland of course they can say "You will do X and Y".

  David Green: Yes. Both things happen. Obviously if someone is stopped at the airport with drugs on them the investigator from HMRC will call one of our prosecutors, they will be given advice on charging. Equally, there may be a case which is simply referred to us without any prosecutor involvement. Certainly in the more complex cases we are involved from a very early stage, both with HMRC in the way I have described and certainly with the Serious Organised Crime Agency, looking at what the options are and which is the best way forward in a particular investigation.

  Q228  Mr Tyrie: Let me try to get to the conclusion of my slightly periphrastic cross-examination. What I am trying to get at is what net benefit we have by having you in existence as opposed to having your role done internally, as we used to.

  David Green: If you go back to what happened and why we were set up, I am sure you will remember the Butterfield report and the reasons why RCPO was created. The problem, as analysed by Mr Justice Butterfield then, was that within Customs and Excise there were investigators and there were in-house lawyers and essentially the in-house lawyer, for various reasons, was often being cut out of the picture. The axis in several cases was between the investigator on the one hand and prosecuting counsel acting for Customs and Excise on the other. Therefore, there was not much value added by the prosecutors within Customs and Excise and problems arose on the difficult issue of disclosure. Now things have changed. The decision was taken to take us out from the new Revenue and Customs and really to engender a culture of case ownership amongst our prosecutors and we have done that. We operate a 91% conviction rate.

  Q229  Mr Heath: When you assess the public interest is there a pound sign attached? Is the return to the revenue one of the factors you consider to be in the public interest?

  David Green: It might be one of the factors.

  Q230  Mr Tyrie: It might be?

  David Green: It depends; it depends. One looks at it from the code test. It may not always be in the public interest. Obviously if it is a very large fraud, a large amount of public money disappeared, of course we would try our utmost to perfect the case to bring it to court; of course we would.

  Q231  Mr Heath: That is a different public interest test to the one CPS applies generally.

  David Green: It is one of the factors that would come under public interest; one of the factors, there may be many.

  Q232  Alun Michael: I want to return to this question of how you make sure that there is consistency across the system. You said a few minutes ago that in looking at consistency there was no difference between your decision making and perhaps the comparative decision making of the crown prosecutor in Southend as distinct from Cardiff or Birmingham for instance.

  David Green: Yes.

  Q233  Alun Michael: But there is a difference, is there not? In that case they would be part of the same management structure and there would be systems in place, one would expect. We are talking here about very clearly separate prosecuting organisations. Can you tell us what systems of liaison and discussion there are between the different prosecuting agencies? I am talking about ensuring that practice and policy are consistent.

  David Green: I could give you an example, say on confiscation of criminal assets. The people who do that within the CPS and the people who do that within my organisation liaise regularly on interpretation of case law, interpretation of statutes, how to go about things, how much to pay receivers, that kind of thing. So you end up with a pretty standard approach.

  Q234  Alun Michael: How does the management of those cases ensure that is the case? You seem to be referring there to practitioner cooperation on a specific task within the overall role. How do you ensure that there is consistency across what are different organisations with different management structures and accountability?

  David Green: Because we have liaison at all levels from director level downwards to senior managers down to practitioners. We have working groups. An example, for instance, would be the development of guidelines on disclosure. That was done by a working group which included CPS, RCPO and SFO. That again was the product of discussion. Then it is enforced by management and by a system of inspection.

  Q235  Alun Michael: Let us take that example for a moment. Who decides at the end of the day? A working group has produced some recommendations, it has included people from the different agencies, is that signed off by the heads of all the different prosecution agencies? Does the Attorney General have a role at the end of the day?

  David Green: At the end of the day it would be in relation to disclosure. For instance, joint guidelines were produced by the DPP, by me and the director of the Serious Fraud Office. That happens in other areas as well.

  Q236  Alun Michael: Yes, but I am trying to get this clear. Is that a matter where the three of you in that case agree on the joint guidelines and if the three of you cannot agree it does not happen? Or does it go up to the Attorney General to sign off what the three of you have agreed or, if necessary, to knock heads together?

  David Green: I cannot think of an occasion when anyone has had to knock our heads together; certainly as superintendent of the prosecutors the Attorney General would have knowledge of and bless the agreement in the end. One ought as well to make clear in connection with this consistency point that by statute RCPO is inspected by the Crown Prosecution Service Inspectorate. We are held to the same sort of account as the CPS; we are undergoing an inspection at the moment actually.

  Q237  Alun Michael: The suspicion I would have is that that is all fine as long as things are going well, but what is the fallback? You have indicated that the inspectorate may provide part of the integrated oversight.

  David Green: Yes.

  Q238  Alun Michael: The Attorney is ultimately responsible I suppose?

  David Green: Yes.

  Q239  Alun Michael: If you agree something across the different agencies, is that then something that goes up to the Attorney for either blessing or for amendment?

  David Green: It is the sort of thing which would be dealt with at the strategic board to which I referred earlier. The whole point of the strategic board is that it includes all the Attorney's departments within the law officers' departments and we meet with a view to ensuring our strategy is joined up across the law officers' departments. It is precisely to get this kind of consistency that the strategic board exists.



 
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