- Created by: Holly Stevenson
- Created on: 26-05-10 13:21
The prosecution process
- The actual decision to prosecute rather than caution or drop the case isn't up to the police but with an independent body known as the Crown Prosecution Service.
- Before 1986, the decision to prosecute or not was taken by the police.
- This was criticised whether the police could be expected to be sufficently independent to decide whether it was in the interest of justice to prosecute.
- The investigations of the crime should be seperate to the prosecution process because the police could be biased.
- A government inquiry led to the Proecution of Offences Act 1985 and the establishment of the CPS.
- The head of the CPS is the Director of the Public Prosecution (DPP).
- The Attorney General is a political appointment who acts as legal advisor to the government.
The prosecution Process
The primary role of the CPS is to:
- Advise the police on the admissibility of the case.
- Review all cases passed to them by the police to ensure sufficient evidence and public interest criteria.
- Conduct the prosecution in both the Magistrates' Court & Crown Court.
When they make decision regarding prosecution, it is baed on two tests:
- There must be a 'realistic prospect of success'
- It must be ' in the publics interest' to prosecute.
A code for crown prosecutors provides detailed guidance which must be adhered to Public interest factors in favour of prosecution includes:
- The use of violence
- The likelihood of a significant sentence
- The offence is committed by someone serving the public.
The prosecution process
Factors which might render it inappropriate to prosecute include:
- Offence is a trivial one.
- Harm caused is minimal.
- Offender is very old or very ill.
The code for prosecutors can be updated to take into account changing societal attitudes.
Criticisms of the CPS
- The CPS faces many criticisms relating to its cometences and inefficiency.
- This was accepted as partly due to understaffing and has been tackled during the 1990's by an increase in funding.
- A main concern is that the CPS discontinues or downgrades cases in a large number of cases so as to reduces costs.
- In response to the criticism, the Government appointed a former Court of Appeal judge, Sir Ian Glidewell to conduct the inquiry into the organisation.
- The Glidewell report found that the CPS dropped around 12% of cases because of inadequate preparation.
- Over half of all aquittals are actually directed by the trial judge after they have concluded that there isnt enough evidence which indicates that the CPS is proceeding with cases which are oviously not strong enough to put before a jury.
- The CPS clained that this is the fault of the police who carried out in initial investigations.
- Many cases are discontinued because prosecution witnesses fail to attend court or give a different version of the facts when they take the stand.
- It is difficult for the CPS to prevent this from happening.
Criticisms of the CPS
- The most recent change designed to reduce the discontinuance rate is for the CPS to advise the police on the initial charges in most cases.
- As a result of the Criminal Justice Act 2003, criminal justice units are now being established where a duty CPS solicitor is on hand to advise the police as to the charges in each case. This gives the CPS a centeral role in the formulation of the charge and thereby reduce the rate of discontinuance.
- Another concern was the approach to the disclosure of evidence to the defence, such as witness statements or forensic evidence. This means that in practice, the police might gather evidence through the course of their investigation which actually supports the defence but which the defence are not aware.
- In 1996 the Criminal Procedure and investigations Act was passed. This act reduced the burden on the prosecution to disclose all the evidence it has in its possession.
Criticisms of the CPS
- The most recent to hit the CPS is the allegation of 'institutional racism', highlighted in an independent report in 2001.
- It would appear that even thought the CPS was established to inject independence into the prosecution process, the CPS has failed to deliver the level of competence, efficiency and fairness which had been hoped.
- The organisation will have to respond to such criticism in order to command public confidence in the future.
Criminal offences are divided into three categories:
- Summary - These are the least serious and are always tried in the Magistrates' court. They include nearly all driving offeneces, common assult and criminal damages of less than £5000
- Either way/Hybrid - These are the middle range of crimes, which can be tried in the Magistrates' or crown court.
- Indictable - These are the mot serious offences (murder). They have to be tried in the Crown Court due to their seriousness.
Organisation of the CPS
- The head of the CPS is the Director of public prosecutions (DPP) who must have been qualified as a lawyer for at least 10 years.
- Below the DPP are the Chief Crown prosecutors who each head one of the 42 areas into which the country is divided.
- Each area is sub-divided into branches, each of which is headed by a Branch Crown Prosecutor. Within the branches are several lawyers and support staff.
The functions of the CPS
These involve all aspects of prosecution and can be summarised as:
- Deciding on what offences ahould be charged. This use to be done by the police, but sometimes inappropriate charges were brought which meant that the case had to be discontinued.
- Reviewing all cases passed to them by the police to see if there is sufficient evidence for a case to proceed, and whether it is in the public interest to do so; this is to avoid week cases being brought to court.
- Being responsible for the case after it has been passed to them by the police.
- Conducting the prosecutiton of cases in the Magistrates' court this is usually done by lawyers working in the Crown Prosecutiton Service as crown Prosecutor with the appropriate advocacy qualifications.
- On a pratical level, once a defendant has been charged with an offence the police role it at an end. They must send the papers for each case to the CPS - each case is then assigned to a team in the local branch of CPS, and that team will be responsible for the case throughout the prosecution process.
- This is aimed at ensuring continuity and better communication in each case.
- Concerned with whether there is sufficent evidence to provide a 'realistic prospect of conviction' in the case.
- Under this the CPS has to consider what the stregth of the evidence is, and whether magistrates or a jury are more likely than not to convict.
- It will ask itself whether the evidence is admissible or whether it has been obtained by breaching the rules of PACE.
- Whether a witnesses background may weaken the case.
- How strong the evidence of identification of the defendant is.
Public interests test
- Whether it is in the publics interest to continue with the case, this is more controversial as it involves very wide-ranging considerations.
- The code of practice gives lists of some' common public interest factors' both for and against prosecution.