Posts Tagged ‘crown prosecution service’
Royal Commission on Criminal Procedure – 40th Anniversary of the publication of the Philips report
Yesterday (6 January 2021) I published a note on two recent reports about the police powers of stop and search. This has triggered a response from one reader who has reminded (more accurately informed) me that, almost 40 years to the day, the report of the report of the Royal Commission on Criminal Procedure (RCCP) – chaired by the late Sir Cyril Philips – was published on 5 January 1981.
Sometimes Royal Commissions get a bad press. It is said they are used as a means of kicking difficult subjects into the long grass, in the hope that somehow they will go away or at least provide Ministers with an excuse not to do something until the Commission has reported by which time someone else will be in charge.
The Royal Commission on Criminal Procedure was not one of these. It was a major undertaking – accompanied by a substantial research programme – which lead to three major developments in the criminal justice system in England and Wales.
The first of these was the establishment of the Crown Prosecution Service. Until the RCCP reported, the police were responsible for both investigating a crime and taking the decision to prosecute. A number of miscarriages of justice at the time occurred because the police did, on occasion, use these twin functions to ensure that they were in charge of getting evidence that would eventually enable them to bring a prosecution.
The RCCP insisted that there had to be a separation between the investigation function and the prosecution function. At the time this was regarded as a very controversial idea, but the Government agreed to implement the recommendation. Following the publication of a White Paper in 1983, the Prosecution of Offenders Act 1985 created the new service, which started work in 1986. It brought together, under the Director for Public Prosecutions (DPP), the former DPP’s office and the prosecution offices from individual police forces in England and Wales. Despite a lot of teething problems, the CPS has become a well established part of the criminal justice system – albeit now struggling with others from funding cuts and Covid 19.
The second major outcome from the RCCP was the enactment of the Police and Criminal Evidence Act 1984. This sought to bring clarity to the powers of the police. Since this involved some rationalisation and expansion of police power, the PACE Codes of Practice were also put in place to set boundaries on the ways in which those powers were to be exercised. Although the Codes have been revised and added to since the original legislation was enacted, the basis framework recommended by the RCCP has survived. Indeed, the creation of the CPS was, at least in part, to provide another check on the possible abuse by the police of their reformed powers.
A third development recommended by the RCCP was the creation of the Police Complaints Authority (now the Independent Office for Police Complaints). This replaced an earlier Police Complaints Board which did not have the powers or resources to take complaints against the police seriously.
I would not for one moment argue that the RCCP report solved all the problems relating to the criminal justice system. (The fact that only a decade later there was a further Royal Commission, this time on Criminal Justice, which – among other things – recommended the creation of the Criminal Cases Review Commission, shows that the criminal justice system always presents challenges for policy makers and practitioners.)
But it did create a structure which has lasted more or less intact for 40 years.
Experience with both these Royal Commissions demonstrates that their work can deliver significant and lasting change. This is one of the reasons why I, for one, am so disappointed that the Royal Commission on the Criminal Justice System, promised by the present Government, is not being taken forward more urgently. (See https://martinpartington.com/2020/07/13/royal-commission-on-the-criminal-justice-system-details-awaited/)
Disclosure of evidence: planning for change – first steps
In July 2017, the Inspectorates of the Crown Prosecution Service and Constabulary published a very critical report on the failure of police and prosecution services to apply the rules relating to the disclosure of evidence held by police/prosecutors to defence teams. (I noted the report here in November 2017).
Since then, it seems that the issue of the failure of the police and prosecution to disclose evidence to defence lawyers which might undermine or weaken the prosecution case has received almost daily attention in the mass media. A number of well publicised cases have emerged in which those accused of serious crimes (in particular rape) have found out only at a late stage that evidence which undermines the case against them is available.
A number of reasons have been advanced for these failures. For example, it is argued that the current law was put in place before the arrival of mobile phones and the vast amounts of electronic data that is generated on phones and tablet.
It is also argued that police and prosecutors lack the resources to comb through all this information to see what might by relevant.
This is an extremely serious issue which goes to the heart of the criminal justice system. People must feel that the system is fair and that those who run it are complying with the rules.
Clearly both the police and CPS are taking this issue seriously. The first tangible step has recently been taken. At the end of January 2018, a plan was published by the Crown Prosecution Service (CPS), the National Police Chiefs’ Council (NPCC) and the College of Policing. This sets out measures designed to improve practice in this area.
These first steps include:
- Reviewing disclosure training with the College of Policing
- Developing a cadre of specialist and experienced disclosure experts in every force
- Providing all multimedia evidence from the CPS to the defence digitally
- Putting in place specific improvement plans for each force and CPS area
- Setting up a system for the CPS and police to better identify and deal with cases with significant and complex disclosure issues.
This will not be the last word on this subject. Much work has to be done to ensure that all those engaged in the criminal justice system actually act in accordance with the statutory rules on disclosure. But it is an important first step.
The text of the plan can be found at http://www.npcc.police.uk/Publication/National%20Disclosure%20Improvement%20Plan%20January%202018.pdf
The treatment of, and outcomes for, Black, Asian and Minority Ethnic (BAME) individuals in the criminal justice system: the Lammy Review
At the beginning of 2016, David Lammy MP was asked by the then Prime Minister David Cameron to review the workings of the criminal justice system, with the object of seeing whether the system worked fairly, in particular in relation to BAME individuals. (The review was noted in this blog in February 2016; its interim findings were noted here in November 2016)
The final report of the review was published in September 2017.
The bare statistics tell a familiar story. Thus the study found, for example:
- the fact that BAME individuals are disproportionately represented in the criminal justice system costs the taxpayer at least £309 million each year;
- the proportion of BAME young offenders in custody rose from 25% to 41% between 2006 and 2016, despite the overall number of young offenders falling to record lows;
- the rate of Black defendants pleading not guilty in Crown Courts in England and Wales between 2006 and 2014 was 41%, compared to 31% of white defendants. (This means they lose the possibility of reduced sentences and it raises questions about their level of trust in the system.);
- the BAME proportion of young people offending for the first time rose from 11% in 2006 to 19% a decade later;
- there was an identical increase in the BAME proportion of young people reoffending over the same period.
Lammy looked at what happens in a number of other countries to see whether we could learn from experience elsewhere.
Two specific examples may be noted.
- Taking inspiration from youth justice in Germany, Lammy argues that rigorous assessments of a young offender’s maturity should inform sentencing decisions. Those judged to have low levels of maturity could also receive extended support from the youth justice system until they are 21.
- He also called for ‘Local Justice Panels’ to be established, taking inspiration from New Zealand’s Rangatahi courts, where local people with a direct stake in a young offender’s life are invited to contribute to their hearings. These panels would normally deal with first-time offenders given community sentences, include key figures such as teachers or social workers, and hold local services to account for a child’s rehabilitation.
Lammy made a number of innovative recommendations for judges, prosecutors and prisons.
For example, he proposed that a ‘deferred prosecution’ model be rolled out, allowing low-level offenders to receive targeted rehabilitation before entering a plea. Those successfully completing rehabilitation programmes would see their charges dropped, while those who did not would still face criminal proceedings. (Such a scheme has already been piloted in the West Midlands, with violent offenders 35% less likely to reoffend. Victims were also more satisfied, feeling that intervention before submitting a plea was more likely to stop reoffending.)
He recommended that all sentencing remarks made by judges in the Crown Court should be published. He argued that this could help to make justice more transparent for victims, witnesses and offenders. It would also start to address the ‘trust deficit’ between BAME individuals and the justice system, which Lammy argues has contributed to Black and Asian men and Asian women being over 50% more likely than their White counterparts to enter a not guilty plea.
He also argues the UK should learn from the US system for ‘sealing’ criminal records, claiming ex-offenders should be able to apply to have their case heard by a judge or independent body, such as the Parole Board, where they could prove they have reformed. The judge would then decide whether to ‘seal’ the record, having considered factors such as time since the offence and evidence of rehabilitation. If the decision goes the applicant’s way, their record will still exist, but the individual would not need to disclose it and employers would not be able to access it. Lammy hoped this would help the people affected to become more employable.
Lammy accepts that there are other wider social issues that must be addressed as well; but he argues that the recommendations he makes could do much to build greater trust in the criminal justice system, reduce reoffending and improve outcomes for victims.
Whether or not these recommendations will lead to actual changes on the ground is too early to say. The fact that two Prime Ministers strongly supported the review might suggest that there would be some political impetus for follow-up. But, given other political priorities, I would not expect a rapid response from Ministers.
The Press Release, with links to the report can be found at https://www.gov.uk/government/news/lammy-publishes-historic-review
Rise in numbers of private prosecutions?
The principal prosecution authority in the English Legal System is the Crown Prosecution Service. Private prosecutions, brought by individuals, have been rare. But two recent news items, reported in the Times Newspaper suggest that we may be witnessing an increase in private prosecutions.
On 2 September 2015 it was reported that some of the families caught up in the terrible refuse lorry accident in Glasgow last year were contemplating bringing criminal proceedings against the driver.
On 3 September 2015, there was an interesting feature also suggesting that private prosecutions might be on the interest, in particular where allegations of serious corporate fraud were involved. The key issue made in the article was that the reason why private prosecutions might be on the increase might be reductions in funding for the CPS which meant that they did not have the resources to take on serious cases.
It is hard to judge from a single newspaper article whether this really is a trend; and it is certainly not possible to say whether the suggested reason – public expenditure cuts – is the principal reason why this is happening. However, the two items – taken together – perhaps lay down a marker that this is an issue which needs to be kept under review.
Although I have argued elsewhere that not all cuts to public expenditure are necessarily harmful, if those cuts are preventing the CPS from doing its job of bringing to court cases that fall within its code of practice, this would seem to extremely worrying and an issue on which there should be proper research.
For the article see: http://www.thetimes.co.uk/tto/law/article4545615.ece
Victim’s right to review a decision not to prosecute.
It used to be the case that when the Crown Prosecution Service (CPS) decided not to proceed with a prosecution, that was the end of the matter. The courts were clearly unhappy that the CPS should never reconsider a decision not to prosecute. On 29 June 2011, the Court of Appeal in R v Christopher Killick [2011] EWCA Crim 1608, considered in some detail the right of a victim of crime to seek a review of a CPS decision not to prosecute. It concluded that:
• a victim has a right to seek a review in such circumstances;
• a victim should not have to seek recourse to judicial review;
• the right to a review should be made the subject of a clearer procedure and guidance with time limits.
Following this judgement, the CPS created a new scheme – the Victim’s Right to Review Scheme – to give effect to the principles laid down in Killick and also to meet Article 10 of the European Union Directive establishing minimum standards on the rights, support, and protection of victims of crime. It was launched in June 2013.
Data recently published by the CPS shows that between 5 June 2013 and 31 March 2014, the CPS made 113,952 decisions which could be subject to appeal under the VRR scheme. The CPS reviewed 1,186 cases; of these 162 decisions were overturned.
The CPS also undertoook some work to see how the scheme was working in the light of experience. The outcome of this work is that a slightly revised, final, scheme of review was prepared and published in July 2014.
For the data, see http://www.cps.gov.uk/victims_witnesses/victims_right_to_review/vrr_data/index.html
The revised scheme is at http://www.cps.gov.uk/victims_witnesses/victims_right_to_review/index.html
Victims’ right to review prosecution decisions
From June 2013, there has been a procedure in place allowing victims to ask the CPS to review any decision not to take a case forward, either by not charging a person or by continuing procedures. In most cases, this involved a process of reviewing the initial decision by a more senior officer within the CPS.
An enhanced procedure is available for certain classes of victim:
- Victims of the most serious crime
- Persistently targeted victims
- Vulnerable or intimidated victims
Their rights are now set out in a revised version of the Victims’ Code that was published in December 2013.
A detailed summary of the procedure is at http://www.cps.gov.uk/victims_witnesses/victims_right_to_review/, which also has a link to the full Victims’ Code.
Deferred prosecution agreements: code of practice published
I have already noted that the Director of Public Prosecutions was consulting on the possible use of Deferred prosecution Agreements – designed in particular to assist in the investigation of serious fraud. In February 2014, the DPP published the Code of Practice that relates to DPAs.
DPAs involve companies reaching an agreement with a prosecutor, where the company is charged with a criminal offence but proceedings are automatically suspended. The company agrees to a number of conditions, which may include payment of a financial penalty, payment of compensation and implementation of a corporate compliance programme. DPAs may be used for fraud, bribery and economic crime.
The text of the Code is at http://www.cps.gov.uk/publications/directors_guidance/index.html
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 