Police investigations and the role of the Crown Prosecution Service Contents

2The Crown Prosecution Service’s role in investigations

10.The Director of Public Prosecutions (DPP) explained in her evidence to us the CPS’s role in the investigative process: “The [Director’s] guidance is clear that cases that come to us for charging decisions should only do so when the police consider that it satisfies a code test, which is a realistic prospect of conviction.” In relation to the Lord Brittan case, she said “At no time did this meet that test”. She was also of the view that “It was not a case that was particularly complex”.11

11.The DPP was equally clear about the proper process to be followed by the CPS in making decisions about prosecution of cases: “We make our decisions in accordance with the code for Crown Prosecutors, and that is the only thing that we make our decisions on: whether there is a realistic prospect of conviction, looking at the evidence, and it has to be reliable and admissible in court”. The issue of “public interest” in a case would only be considered if and when the threshold of “realistic prospect of conviction” had been met. 12 The Full Code Test as set out in the Code for Crown Prosecutors, states:

4.1 The Full Code Test has two stages: (i) the evidential stage; followed by (ii) the public interest stage.

4.2 In most cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed. However there will be cases where it is clear, prior to the collection and consideration of all the likely evidence, that the public interest does not require a prosecution. In these instances, prosecutors may decide that the case should not proceed further.

4.3 Prosecutors should only take such a decision when they are satisfied that the broad extent of the criminality has been determined and that they are able to make a fully informed assessment of the public interest. If prosecutors do not have sufficient information to take such a decision, the investigation should proceed and a decision taken later in accordance with the Full Code Test set out in this section.

The Evidential Stage

4.4 Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. […]

The Public Interest Stage

4.7 In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest.

4.8 It has never been the rule that a prosecution will automatically take place once the evidential stage is met. A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour.13

12.The DPP was also very clear about the appropriate way to treat correspondence from MPs or others to her or the CPS about police investigations: “It is not a matter for us. I can’t answer for the police, so we always pass it straight to the relevant force for them to answer.”14 The DPP made clear in her reply in June 2014 to Mr Watson’s letter to her of 28 April 2014 about the Lord Brittan case that his letter would be forwarded to the relevant police officer.15

13.We asked the DPP about her response to the Metropolitan Police’s request that the CPS consider changing its policy to enable police files to be considered where there was “significant public interest”. She said it would be possible to make this change without amending legislation because the policy emanated from the Director’s guidance, which she could amend if she believed it to be appropriate. However, the DPP argued that she did not want the CPS to become responsible “for decisions which are rightly the police’s territory”; although the CPS could advise, “we are not investigators” and “we do not make operational decisions in relation to investigations”. She said that she was currently discussing the issue of potential changes to the Guidance with the MPS.16

14.Later in her evidence she was more emphatic that “If you don’t have the evidence, you can’t go ahead with it”; the CPS would not wish to “open the floodgates” and create a situation where more cases were coming in to them “where there is no realistic prospect of conviction”. She emphasised that “there is a role for the police, where they make decisions in these cases now” and she saw “no reason for that to be changed”.17

15. The Metropolitan Police has asked the DPP to consider changing the Director’s Guidance to allow “significant public interest” to be taken into account when coming to decisions about whether a case should be referred to the CPS, where the evidential threshold is not satisfied or the case is borderline. In evidence to us, the DPP expressed reluctance to consider making any change to the current criteria, because she believed that the requirement to meet the evidence threshold had to remain the first criterion for coming to a decision.

16.The DPP could not have been clearer in her evidence to us about the primacy of the evidential threshold in making decisions on whether a case should be taken further. She told us that:

This is as emphatic as it is possible to be. We agree with the DPP that the evidential threshold required to prosecute a case must be met first, before the public interest is taken into account.

Police and CPS handling of the case of Mr Paul Gambaccini

17.Our predecessors in the last Parliament reported on the case of Mr Paul Gambaccini, which has some similarities to that of the investigation into Lord Brittan, in relation to the delays in informing him of progress with the investigation. The Committee took oral evidence from Mr Gambaccini and his solicitor in March 2015 (as part of an inquiry into Police Bail).18

18.As our predecessors’ report notes, the investigation into Paul Gambaccini started in April 2013, following an allegation made by a single complainant, but was dropped by the police on 5 September 2013 because of insufficient evidence. Mr Gambaccini was arrested on 29 October 2013 by officers from Operation Yewtree, after a second complainant came forward. He was released and initially bailed until 8 January 2014. His file was passed to the CPS on 10 February 2014. Between January and October 2014, when he was eventually told that no further action would be taken, he had been re-bailed six times. At one point he found out he was being re-bailed only via the media and neither he nor his solicitor was notified directly.

19.Our predecessors believed that it was unfair to let the complainant know that a case is not to be proceeded with, but not the person who had been complained against. They recommended that, where a person has been on bail for longer than six months, and where the final decision is to take no further action, the CPS should write to the individual explaining the decision.

20.In response, the Home Secretary said she welcomed this conclusion and stated: “I have been clear for some time that it is simply not acceptable for individuals to have spent months and in some cases years on pre-charge bail, with no prospect of review, only for no charges to be ultimately brought against them”. She noted the Government’s response to its consultation on pre-charge bail and said that legislative changes would be brought forward, which would include “setting an expectation that pre-charge bail will not last longer than 28 days, with extensions permissible only under specific circumstances”. Regarding responsibility for informing those against whom a complaint had been made, she said: “it is for the police to inform suspects and explain the charging decisions made, although the decision will often have been taken by the CPS”.19

21.We raised this issue again in oral evidence, with both the DPP and the Metropolitan Police Assistant Commissioner Patricia Gallan, with specific reference to Mr Gambaccini.20 The DPP told us that the CPS did eventually write to Mr Gambaccini to explain the delay in him being advised that no further action would be taken in his case but, “due to an administrative error”, this was not done until October 2015, and not until after the Chair of this Committee had written to her.21 The Assistant Commissioner set out the sequence of events from the Metropolitan Police’s perspective in correspondence.22

22.Assistant Commissioner Gallan told us that the MPS case file relating to Mr Gambaccini “was passed to the CPS on 10th February 2014”. The DPP has confirmed that “initial papers were provided by the police to the CPS in February 2014”. However, the DPP is very clear that “it was not until September 2014 that a full advice file was submitted by the police” so it would not have been possible for the CPS to come to a decision before this point. Once the full file had been received by the CPS, it advised the police “one month later, in October 2014, that no further action should be taken”. Mr Gambaccini was therefore made to wait six months for a decision to be made because the full file was not submitted by the MPS within a reasonable time. We regard this as unacceptable.

23.Our predecessor Committee recommended in March 2015 that the CPS issue a formal apology to Mr Paul Gambaccini, with an explanation of why his case took so long to deal with. The CPS has now sent an explanation to Mr Gambaccini but, due to an “administrative error”, it was not sent until October 2015, following the Chair of this Committee’s letter to the DPP. The delays in both dealing with the case, and then in sending an explanation of the reasons for this, are most regrettable. We welcome the apology from the DPP to Mr Gambaccini for the distress this caused him.

11 Q280-281. The “Director’s Guidance” is The Director’s Guidance on Charging 2013 - fifth edition, May 2013 (revised arrangements) - which is the guidance to Police Officers and Crown Prosecutors Issued by the Director of Public Prosecution under S37A of the Police and Criminal Evidence Act 1984. It is available on the CPS website at www.cps.gov.uk/publications

13 Crown Prosecution Service, Code for Crown Prosecutors (extract)

18 Seventeenth Report of Session 2014-15, Police Bail, HC 962, Chapter 4

19 Government response to the Seventeenth Report from the Home Affairs Committee, 2014-15 on Police Bail: letter to the Chair from the Home Secretary, 24 March 2015

© Parliamentary copyright 2015

Prepared 19 November 2015