Prior to the CPS
Royal Commission on Criminal Procedure 1981, A.K.A the Phillips Commission:
Felt it was inappropriate for police to make decision of whether to prosecute a crime or not, as police are too close to any given case to make a sufficiently objective decision. This was the case in:
· Birmingham Six
· Cardiff Three
Police were too close to the investigation in these cases and lacked independence.
The Phillips Commission found there was also no uniform system of prosecution throughout Wales and England, which is essential for consistency and fairness. Crimes were being dealt with differently according to region.
Establishment of the CPS
Prosecution of Offences Act 1985
This act set up an independent and expert body to decide whether to prosecute in a case, and then to proceed into court to prosecute: the Crown Prosecution Service, or CPS.
Organisation of the CPS
· DPP: Director of Public Prosecutions. Currently Kier Starmer
· Chief Crown Prosecutors: Each in charge of one of 13 areas. There is also on virtual area available 24 hours a day to provide advice.
· Crown Prosecutors, supported by trained Paralegal Officers (unqualified)
The DPP is accountable to the Attorney General, the legal advisor to Parliament, who is in turn accountable to Parliament for the Service.
Powers of the CPS
· Prosecution of Offences Act 1985 contains main body of CPS powers. Deciding whether to prosecute, prosecuting an offender in court.
· Criminal Justice Act 2003 has added to CPS powers. This act states the function of CPS is to ‘provide an objective assessment’ of police cases; CPS is provided with power to charge an offender by this act.
The CPS can:
· Discontinue a case and drop the charges.
· Allow case to proceed as per charges.
- Downgrade charges and substitute with a lesser offence
· This test requires Crown Prosecutors to decide whether there is at least reasonable suspicion, over 50%, that the suspect committed an offence and if it is within the public interest to charge the suspect based on the information available at the time of charge.
· This applies to cases where it inappropriate to bail the suspect after charge, such as a terrorist. Such a defendant poses a large bail risk, but there is not enough evidence to apply the Full Code test yet.
· This decision must continually be reviewed and the evidence assessed so the prosecutor can ensure the charge is appropriate.
Then the Full Code test must be applied as soon as possible.
Full Code Test
This is where the Crown Prosecutor is deciding whether or not to prosecute an offender after they have been charged. There are two tests:
· Evidential Test
· Public Interest Test
This test is contained in the Code for Crown Prosecutors which was written by the DPP to aid prosecutors in making such decision.
The Crown Prosecutor looks at the evidence an determines if there is a realistic prospect of conviction. This standard means that the evidence must be such that it will likely lead to a conviction. Prosecutors will considers two questions:
· Can the evidence be used in Court? If it was gathered illegally, such as when police enter a house without a warrant, then the evidence cannot be used in Court. The Prosecutor will have to assess the strength of the remaining evidence.
· Is the evidence reliable? The Crown Prosecutor must ensure that there isn’t any evidence that will damage the reliability of the other evidence gathered, such as circumstantial evidence, hearsay, or a witness who was very closely involved with defendant.
If a case doesn’t pass this test, it MUST NOT go ahead, even if it is serious or important.
Public Interest Test
The Crown Prosecutor must check if the prosecution of the offence is within the public interest. A case with sufficient evidence will not always be prosecuted if it is not in the public interest. There are factors in the public interest, for example:
· Conviction with a significant sentence
· An offence motivated by discrimination, racial or sexual orientation.
· The victim was vulnerable
And factors not in the public interest:
· The loss/harm caused by the crime is minor.
· The defendant is elderly/very young, and doesn’t fully comprehend the crime.
If a case passes the public interest test, the Crown Prosecutors have decided it is appropriate for the case to go to court. If it doesn’t pass, the case is discontinued
This is a case concerning a woman with progressive MS. She wanted to know if, sometime in the future, her husband were to assist her in going to the Swiss Dignitas Clinic to commit suicide, would he be prosecuted for assisted suicide. In this case, the House of Lord held that the DPP needed to publish new guideline surrounding assisted suicide.
A new policy has been written, and the DPP has said ‘the new policy sets out the public interest factors which prosecutors will take into account in reaching their decision’.
CPS in Prosecution
After the two stage test, the case goes to court and CPS lawyers present the prosecution against the defendant. This power is given by the Prosecution of Offences Act 1985. The CPS prosecute in both the Magistrates’ Court and the Crown Court.
Magistrates’ Court=Crown Prosecutor
Crown Court and above=Independent Barrister, or Crown Advocate
Criticism: Downgrading Charges
The CPS downgrade charges to ensure a successful prosecution, especially in **** cases which are difficult to prove. Rape is often downgraded sexual assault, which is easier to prove.
Suffolk Teenage Boy case: A 7 year old girl in Suffolk was ****d by a 15 year old boy at a family party. There was initially a charge of ****, but it was downgraded to sex with a minor. The defendant was forced to pay a fine and put on a referral order. The CPS argued that downgrading the charges made it so that the girl wouldn’t have to relive her experiences by giving evidence in court.
The problem with this is that the offender isn’t being tried for the offence they are alleged to have done; the offender will not be punished appropriately, and justice will not be done.
Criticism: Poor Management
The CPS is seen as a badly managed organisation lacking leadership. Mislaid files, insufficient time given to case preparation support this criticism. It also contributes to a number of discontinued cases.
CPS Inspectorate 2008: an annual review of the CPS. It concluded that there were many files missing data.
· In 36% of cases the bail statues of the defendant was unrecorded.
· In 16% of Magistrates’ cases and 35% of Crown cases there was no record of follow up action. This sometimes led to incomplete cases, which were then adjourned at a cost of time and money.
· In 11% of Magistrates’ case files and 18% of Crown Cases there were no record of case outcomes.
It is believed this all negatively affects the CPS’ work, with incorrect decisions, failed prosecutions and poor communication with the victim or victim’s family.
Because of poor organisation and management, the case against a man who had been stalking and harassing a woman, known only as Diya, fell apart. Diya had decided to testify against her stalker, but wanted to do so from behind a screen. This was a procedure known as ‘special measures’. However, when she turned up to court, she was informed that the special measures had not been requested in time, and so had been rejected. Bravely, Diya decided to testify without the screen as she wanted the case to go ahead, but found that the case was already over as she approached the courtroom. The CPS lawyer in the case had offered no evidence, and so the defendant had been acquitted; even though Diya had been in the building at the time.
Criticism: Discontinuing Cases
The CPS discontinue over 150’000 cases a year. The Code for Crown Prosecutors is supposed to stop this.
· In 2003 and 2004; 13.8% cases discontinued out of 1.57 million cases. 1.4 million cases were prosecuted.
· Times Article October 2010; Almost half of all Crown Court cases are aborted at the door on the eve of the trial. But not all of these cases are discontinued.
In a way, this is the CPS doing their job; they are dropping cases, so weak cases are not going to court.
The victim or family of a victim takes their case to a civil court if the CPS drops their case. Sometimes this spurs CPS into re-investigating the case. Civil cases are easier for victims or their families to get a victory in, because the crime must be proved on a balance of probabilities rather than beyond reasonable doubt.
IRA was said to be responsible for the deaths of 29 people, but there was no state prosecution. In 2008 a civil case against the real IRA was won by families of the victims of the bombing. This resulted in the naming of 4 men involved with the real IRA, and an award of 1.5 million in damages. The families called it a ‘moral victory’.
Criticism: Weak Cases Taken To Court
Some cases the CPS decide are strong enough to go to court end up being thrown out by the trial judge.
Colin Stagg was charged with the murder of Rachel Nickell, a woman murdered while walking her dog on Wimbledon common. The charge was based on a psychological profile and sexual fantasies Stagg had admitted to an undercover police officer in what is called a ‘honey trap’. The judge threw the case out, claiming it was inadmissible.
A man described as a ‘criminal godfather’ was charged with conspiracy to supply 2.3 kg of heroin. The judge threw out the case as there was no direct evidence and very little circumstantial evidence.
Criticism: Objective and Independent?
Charging Tony Blair-Prosecuting Police
Cash for Peerages: People were donating money to the labour party to fund their campaign in exchange for a place in the House of Lords. This took place in secret. The CPS began investigating, but decided not to charge Tony Blair or any other party members involved as there ‘wasn’t sufficient evidence’.
Jean Charles de Menezies: The police mistakenly identified a Brazilian worker as a suicide bomber. They tailed him to the train station and ended up firing on him. Witnesses argue that the police did not identify themselves and that Menezies did nothing to provoke the police, while police say that they were convinced he was going to detonate a bomb in his bag. The CPS prosecuted the police under health and safety laws, for opening fire on public transportation. But there were no charges for the shooting of Menezies.
· Macpherson Report-Found that the CPS were institutionally racist and prejudiced.
· Weak cases against ethnic minorities are taken to court, and as a result there are higher rates of acquittals for black and ethnic minority defendant, at 42%, than for white defendants, at 30%. The CPS need to be more vigilant to weed out weak cases, as ethnic minorities are more likely to be stopped by police.
· Cases involving black or ethnic minority victims are handled poorly.
This was a case where an 18 year old black boy was fatally stabbed. The CPS wouldn’t take the case, saying there was ‘insufficient evidence’. A private investigation was taken out by the family against 3 men but the judge ordered an acquittal in the trial because of a lack of evidence. ‘Double Jeopardy’ has been dropped since the original trial, and so another trial was able to take place, resulting in the conviction of two men for the crime.
A 10 year old boy was stabbed by a gang as he walked home from school. In the first trial there were 4 defendants. 2 were found guilty on the direction of the jury, and the other 2 were found not guilty on the decision of the jury. At the second trial, the Pridi brothers were convicted for the crime. The CPS initially went after the wrong people.
Criticism: Lack of Clarity in Public Interest Test
· A good example; Debbie Purdy.
· In what circumstances will someone be prosecuted for assisting suicide?
· Assisted suicide has not been made legal, it just won’t be prosecuted under certain circumstances, as under new guidelines by DPP.
Reforming the CPS
Glidewell Report 1998; investigated the role of the CPS. It found that 12% of cases were discontinued and there was tension between the police and the CPS, with both blaming each other for failed cases. Major finding was that there were a high number of judge ordered acquittals, and that evidence and cases were wrongly prepared by the CPS. The overall conclusion of the report was that there was a failure in the communication between the CPS and the police.
And so, the CPS was reorganised into 42 geographical areas like the police. As of April 2011, though, this was reduced to 13 geographical areas plus one virtual area.
Narey Report: This report looked into the delays in the criminal justice system. The report led to a reform, where Crown Prosecutors were placed in police stations. This reduced time between the arrest of a suspect and the CPS’ review of the case. However, this reform has brought the CPS closer to the police; will this invite bias? Compromise the independent nature of the CPS?
Success of Reforms
Statistics from 2002/2003:
· 98% conviction rate in the Magistrates’ Court.
· 70% conviction rate of those pleading not guilty isn’t included in this figure.
· 90% of cases heard in the Crown Court ended with a conviction, a 14% rise.
· This includes 62% defendants pleading not guilty.
There has also been an introduction of designated ‘caseworkers’, lay people trained to support Crown Prosecutors. This was a cheaper solution to supporting the prosecutors. These caseworkers help to prepare cases and work in the Magistrates’s court where a defendant enters a guilty plea. In 2004, it was announced their role in the Magistrates’ would be extended to deal with non-contentious issues, e.g administrative hearings.
· May 2010-David Cameron pledges to return some charging powers to police.
· Police given powers to charge some suspected crimes.
· The Home Secretary wanted all officers to have discretion of charging low level offenders without consulting prosecutors.
· In England and Wales July 2011, the proposals were implemented.
· But the CPS still handle serious crimes.
· The Times; ‘The Home Secretary has just guaranteed the rise in the number of miscarriages of justice and extensive appeals. This decision is a disgrace.’