Standpoint’s Mole inside the Crown Prosecution Service believes that it is too bureaucratic, inefficient and politicised
It is not often that government departments have to apologise as abjectly as the Crown Prosecution Service did last May. In a grovelling statement, it admitted that a joint press release issued with the West Midlands Police was false. The press release had alleged that a Channel 4 television programme, Dispatches, had edited footage of radical Muslim preachers that completely distorted their message, and might have incited racial hatred.
It turned out that there was no evidence of such editing. The police, presumably motivated by extreme political correctness, had essentially made up the allegation. It was all very well to subsequently “accept that there was no evidence that the broadcaster or programme makers had misled the audience or that the programme was likely to encourage… (or ‘incite’) criminal activity” — but the damage had already been done.
An outsider may well wonder if the CPS routinely lets politics influence its decisions in this way, and if the incompetence that led to this particular humiliation is not more general. As an experienced prosecutor, I believe that this incident may be one of many occasions when political considerations may have strongly and wrongly influenced decisions. The CPS can be far more political than people realise.
Before a prosecution can begin, the CPS has to take account of the “public interest.” Not only must there be sufficient evidence to prosecute, there must also be some point to the prosecution. What, many members of the public rightly wished to know, was the point of prosecuting Maya Evans, the lady who was peacefully reading out the names of war victims at the Cenotaph in 2005? Similarly, the decision to prosecute the pro-hunting supporters who invaded the House of Commons in 2004 seems to have been politically motivated. Otis Ferry and his comrades were charged under Section 5 of the Public Order Act 1986 for conduct liable to cause harassment, alarm or distress. It could be argued that any MP who was alarmed, harassed or distressed by such a puny protest should never have been elected, but the politicians wanted them prosecuted for something.
Prosecutions for all but the most trivial matters now have to be filtered through a Crown Prosecutor, since the police no longer have authority to make charges. Decisions can take weeks or even months in contested cases, with the result that some dangerous people remain free on police bail. Despite a new “Charging Scheme,” delays in charging defendants can give them time to intimidate witnesses, and witnesses time to forget or move away and lose contact with the police.
To prove that this scheme is working, the statistics for discontinuing cases or for cases “failing” have to be seen to improve. Therefore, each CPS area is monitored and monthly statistics prepared for how it is doing. There are no prizes for taking difficult decisions. Moreover, the pre-charge decision is taken when there has been no input from the Defence. It is not until the case arrives at court that the Prosecution may become aware that the defendant is, for example, learning disabled or schizophrenic.
One effective way of dealing with domestic violence used to be to arrest the perpetrator for Breach of the Peace. Often the victim (usually female) would just want him removed for the night so she could have some breathing space and he could calm down after a family row. The defendant would then be produced in court the following morning and bound over to keep the peace. This warned him to be careful in future and imposed a sum of money he would have to pay if he was subsequently prosecuted for similar behaviour, but it did not count as a criminal conviction.
However, because proceedings for breach of the peace are a civil rather than a criminal action, any case ending in a bindover is considered a failed prosecution for the CPS. Prosecutors are therefore told not to use them.
In general, individual prosecutors no longer exercise the discretion they once enjoyed. Today it is line managers who decide if a case should be continued or not. These managers are much more vulnerable to political pressure through, say, a letter from a local MP complaining about why a certain person is not being prosecuted.
Another dangerous development is the CPS’s increasing use of non-lawyers – designated caseworkers – to present criminal cases. This is because they are cheaper than properly trained lawyers. Fewer than one-third of the 9,000 or so CPS staff are actually lawyers. If a solicitor or employed barrister is asked by their line manager to do something improper, he or she can refuse to continue the case. However, case workers have no such code or tradition and are more easily scared into line. Yet case workers routinely take on remand hearings and sentencing hearings in the magistrates’ courts, indeed almost everything but full trials. There is even talk of them presenting some crown court cases.
People who watch American TV police dramas and then become involved with the English justice system are often surprised to see that in England the police and prosecutors do not work hand in hand during investigations or even after charge. The Charging Scheme may change this culture to some extent. But before the CPS was created in 1985, police officers presented their own cases in the magistrates’ courts in simple matters, though for serious cases they would use their own solicitors who, if a case went to the Crown Court, could instruct private counsel. The system was much quicker and more efficient, and involved much less paperwork.
The CPS has a much vaunted CPS Direct programme to make up for the absence of prosecutors from police stations during the night, when most crimes are committed and most suspects arrested. The problem is that the quality of decision made after reading information sent by fax is not nearly as good as one reached after a conversation with the arresting officers by a solicitor who knows the officers and the area concerned.
The CPS is also under pressure to do as much work as possible in-house. Prosecutors are being asked to take on higher court advocacy and to run complicated crown court trials before they are sufficiently experienced. They are also under pressure to do as many of the pre-trial hearings as possible. While defence barristers are under an obligation to see the case through to trial in the interest of continuity, CPS lawyers will often appear at these hearings and then farm the case out to counsel later. This preserves CPS control, but may undermine the chances of victory in court.
Even a quick glance at the CPS website reveals the huge influence of branch managers and consultants. It is filled with empty nonsense about the CPS Vision , such as “Driving change and delivery in the Criminal Justice System”. Meanwhile, the CPS continues to be obsessed with statistics, even recording the “ethnic group” of a defendant on its computer system before a case can be registered, and constantly tells its employees that they must “think corporately”. Alas, “thinking corporately” may not serve the public good.