Home AffairsWritten evidence submitted by the Crown Prosecution Service [IPCC 28]

This paper has been prepared to assist members of the Home Affairs Committee in their inquiry into the Independent Police Complaints Commission (IPCC). It deals with the role of the Crown Prosecution Service (CPS) and its interaction with the IPCC.

Background

The Committee will be considering the full range of the IPCC’s activities. The CPS deals with a limited number of IPCC activities but these may be serious and high profile matters, and are set out in further detail below.

The Crown Prosecution Service

The CPS was set up in 1986 under the Prosecution of Offences Act 1985 as an independent authority to prosecute criminal cases investigated by the police in England and Wales. In undertaking this role, the CPS:

advises during the early stages of investigations;

determines the appropriate charges;

keeps all cases under continuous review and decides which cases should be prosecuted;

prepares cases for prosecution in court and prosecutes the cases with in-house advocates or instructs agents and/or counsel to present cases; and

provides information and assistance to victims and prosecution witnesses.

CPS Areas

The CPS is divided into 13 geographical Areas across England and Wales. Areas boundaries align with Police Force Area boundaries but each CPS Area comprises several Police Force Areas. For example, CPS London covers the combined areas of the City of London Police Service and Metropolitan Police Service. Each Area is led by a Chief Crown Prosecutor (CCP) who is responsible for the provision of a high quality prosecution service in his or her Area. A “virtual” 14th Area, CPS Direct, is also headed by a CCP and provides charging decisions to the police.

A large number of complaints against police officers are still dealt with by the relevant police force, under the supervision of the IPCC, and are handled by CPS Areas.

Casework Divisions

The CPS has four Casework Divisions, one of which is Special Crime and Counter Terrorism Division (SCCTD).

SCCTD is headed by Sue Hemming and has offices in London, York and Leeds. Where the investigation is independent or managed by the IPCC, IPCC cases are dealt with exclusively by Special Crime, one of four operational units within the Division.

Special Crime is responsible for advising on and prosecuting some of the most sensitive and demanding cases. Many are high profile and on occasion complex, often attracting strong media interest. Areas of work include deaths in custody, assisted suicide and euthanasia, serious public corruption, election offences, corporate manslaughter, gross negligence medical manslaughter, serious allegations against police officers, prosecutions of CPS employees, leaks by public officials to journalists and cases involving high profile individuals.

Special Crime is headed by a Deputy Head of Division, Malcolm McHaffie.

How IPCC Cases are Handled by SCCTD

Since 1 April 2012 all cases managed or independently investigated1 by the IPCC are referred directly to Special Crime for prosecution decisions.

The Division has agreed two guidance documents with the IPCC:

1.Memorandum of Understanding (MOU) dated 24 February 2011; and

2.Guidance dated December 2011.

The MOU sets out broad principles governing how we will work together and the guidance gives practical advice to both investigators and prosecutors on best practice for obtaining and giving early advice in appropriate cases.

Types of Case Referred to SCCTD by IPCC

A snapshot of the SCCTD caseload of ongoing IPCC cases (pre or post charge) at the end of September 2012 is as follows:

Death in custody or following contact with the police including shootings

9 cases

Assaults

6 cases

Perjury

3 cases

Failure to investigate and falsifying records

2 cases

Dangerous driving

2 cases

IPCC Investigations Relating to Deaths in Contact or in Custody

Jean Charles de Menezes 2005: The Metropolitan Police Service was prosecuted for health and safety offences. The CPS concluded that it was not possible to bring a homicide charge against any officers because the prosecution was unable to rebut their belief as to his intentions—albeit that their belief was wrong.

Andrzej Rymarzak 2009: Mr Rymarzak was unconscious through drink/drugs and he died in a police cell after the on-call doctor failed to rouse or properly examine him. The doctor was acquitted of manslaughter by the jury.

Ian Tomlinson—PC Simon Harwood struck Mr Tomlinson with his police baton and pushed him over shortly before he died at the G20 riots on 1 April 2009. He was acquitted by the jury in 2012.

Mark Saunders 2008: No prosecution—The CPS concluded that it was not possible to rebut the police defence of self-defence.

The Complexities in IPCC Cases Involving Deaths in Custody or Following Contact with Police Officers, including Shootings

Special Crime has specific arrangements in place for dealing with cases involving deaths in custody or in contact with police officers including shootings. These arrangements are in line with the recommendations of the then Attorney General’s “Review of the Role and Practices of the Crown Prosecution Service in Cases Arising from a Death in Custody 2003”.

This category of cases includes deaths in police cells, prisons, secure hospitals and deaths following interaction with the police whether the deceased was technically “in custody” or not. The IPCC deals only with deaths in connection with police action and in police custody, not with deaths in prison or immigration custody.

Only senior lawyers who are specifically designated are permitted to review death in custody cases in Special Crime. Their reviews are examined by their line manager (the “Unit Head”) and then by the Head (or Deputy Head) of Division. They are then submitted to the DPP for final approval. In any case where the decision is not to proceed, if the DPP is not satisfied that it is “plain beyond doubt” that there is no case to answer then experienced external counsel will be instructed to advise. Again, this is in accordance with the Attorney General’s review of deaths in custody.

Does the IPCC have the Right Powers and Resources to Carry Out its Role Effectively?

There have recently been suggestions that the IPCC should move away from employing ex-police officers. We recognize the concerns about perceptions, however, ex police officers are familiar with the criminal law and with presenting their investigations to the CPS and the courts.

Special Crime and the IPCC are setting up joint training days for IPCC investigators over the next two months.

Liaison between SCCTD and the IPCC has improved significantly over the last two years. The MOU and guidance in place facilitates early contact between investigator and prosecutor with a view to setting strategy and giving early advice. It also allows early consideration to be given to the discontinuance of an investigation where it is clear that there is no prospect of prosecution and if appropriate. This means that the resources of both the IPCC and the CPS can be more effectively focused on those investigations that need them.

The IPCC’s Role in Scrutinising Third Parties Commissioned to Carry Out Policing Duties

We would welcome the clarification of the IPCC’s powers to deal with third parties because this would make investigations easier to handle where all but non police suspects are eliminated from enquiries.

The IPCC’s Role in Considering Complaints Relating to the CPS

The current position in relation to police investigations of CPS employees is that the case would be referred to the Special Crime Division. We see no difficulty in the IPCC referring cases involving criminal allegations against CPS employees to Special Crime, in the same way police forces currently do. This would of course require a widening of the IPCC’s investigative powers.

Conclusion

The CPS is taking steps to work with the IPCC to improve investigations so that stronger prosecution cases can be built. We consider that improvements are being made and look forward to making further progress.

Crown Prosecution Service

November 2012

1 PRA 2002 Schedule 3 part 3 paragraph 15 says that where a complaint, recordable conduct matter or DSI (death or serious injury) matter is considered by the Commission to be one that should be investigated, the form of investigation can only be an investigation by:
<?oasys [ci ?>   (a)<?oasys [ix ?>the relevant police force on its own behalf (“local investigation”)
<?oasys [ci ?>   (b)<?oasys [ix ?>the relevant police force under supervision of IPCC (“supervised investigation”)
<?oasys [ci ?>   (c)<?oasys [ix ?>the relevant police force under the management of the IPCC (“managed”)
<?oasys [ci ?>   (d)<?oasys [ix ?>the IPCC (“independent”)
<?oasys [ci ?>  The type is determined by the IPCC on consideration of the seriousness and public interest.

Prepared 31st January 2013