The prosecution of crime

Prosecution and trial are in many senses the core of the criminal justice system. The whole purpose of police activity in tracking offenders is to bring them to trial in court. All the issues concerning disposal, what to do with those convicted, what form punishment should take, are decided in court. Without the court and the prosecution of offenders the criminal justice system does not exist. Policing, from this point of view, is secondary to prosecution. In many jurisdictions the origins of police forces lie in the fact that as society became more complex, as more crimes took place between strangers, the courts required an additional organisation to ensure that offenders, their victims and accusers, were brought or 'delivered' before the courts.

In most jurisdictions the legal official who prosecutes the crime in court is the public prosecutor (sometimes known as the Procurator). The office of public prosecutor is frequently an office much older than the police. In many countries in Continental Europe for example the prosecutor originated as the King's representative sent out to investigate violations of the Kings authority. The police, as they developed, worked, when they were investigating criminal matters, under the direction of the Prosecutor. Thus in Scotland, which in judicial matters was more closely aligned to France than to England until the Union of 1708, the office of Procurator Fiscal dates from the 16th century. The police came later. In the United States the office of District Attorney dates from the way in which the English legal system was imported into America during colonial times. The 'DA' plays a major part in the investigation and prosecution of crimes.

What do prosecutors do?

In jurisdictions which have long established offices of public prosecutor the police generally, at quite an early stage in the process of criminal investigation, make a report to the public prosecutor. The stage when the prosecutor gets involved may vary between different jurisdictions but the work of the prosecutor is distinct from that of the police. The police are interested in tracking down and arresting offenders, the prosecutor is concerned with how the case is going to be presented in court.

To refer back to the previous lecture, police are interested in getting (as the English detectives say) 'a result'. They may use various leads, hunches, bits of evidence, witness testimonies, even information provided by other criminals--virtually anything that will lead them to the target. When they finally arrive at the prime suspect, a confession may be forthcoming.

The prosecutor looks at all this evidence. His or her question is: how will this stand up in court? Do we have enough evidence? Are the witnesses reliable? Are they known to be dubious characters whose evidence won't actually count for much when it comes to cross-examination. Are there important pieces of evidence missing. Even though the suspect has confessed there may be, for example, conflicting evidence (e.g. he or she was seen somewhere else at the time of the crime). Will the suspect's confession be thrown out by the court because it was extracted by the police using too much pressure? These are the sorts of questions that the prosecutor has at the forefront of their mind.

In many jurisdictions the prosecutor assumes overall control of the case once the police have made their initial report and can direct the police to make further inquiries. "I want to prosecute this case but we need more information. Interview these witness again, find this crucial witness who has not yet been interviewed etc." This is the flavour of the instructions the prosecutor will give to the police. In jurisdictions where the prosecutor takes this high profile role, particularly in serious crimes, he or she will want to interview the key witnesses directly to make sure their testimony is going to 'stand up in court.' Finally, the prosecutor may look at the case and decide to change the charges. What started off as a murder charge may end up as a manslaughter charge because the prosecutor thinks there is a greater chance of conviction and is dubious that the police have assembled sufficient evidence to prove intent. Of course, in many jurisdictions the prosecutor can decide that the case really should attract a charge of murder and can direct the police to acquire more evidence of intent.

In the USA, for example, the District Attorney has considerable influence over the conduct of criminal investigations. Often the DA's office has its own investigative team of cops and lawyers. The DA makes the decision whether to prosecute and on what charge. The DA has on occasion been more important than the police in 'cleaning up' crime in a particular city. In New York City for example, where the police department was tainted with corruption for a long period, it was the determined DA, Rudoloph Giuliani, who led the way in the suppression of drug dealers, organised crime and local government corruption, and later became Mayor of New York

So in general terms the role of prosecutors is to

• Assess the adequacy of the police reports: is there sufficient evidence? What should be the charge?

• Is this a serious enough case: is it in the public intererst to prosecute such a case?

• What are the interests of the victim? In criminal law it is the state, not the victim, who prosecutes, but nevertheless it is important to take the interests of the victim into account

• There may be plea bargaining (agreement to plead guilty to a lesser offence) or agreement to pay a fine rather than go to court. This may be handled by the prosecutor rather than the police.

The peculiarities of the English

Having said all this, the remarkable fact about the criminal justic system in England and Wales is that until 1985 there was no independent prosecution service. This is in no small extent due to the very localised and decentralised way in which the English system developed. The power of the King had been restricted by the Barons in Magna Carta in 1215. Justice therefore remained overwhelmingly a local affair, under the control of local aristocrats. The emergence of anything resembling a Royal prosecutor or procurator was therefore checked at an early stage. As the more centralised monarchies of Continental Europe became republics in the 18th and 19th centuries the centralised criminal justice systems were retained. The Royal prosecutor became the representative of the new republican state and was seen to act on behalf of the state (or 'the people') to prosecute crimes. But again, there was no revolution at that time in England but rather a slow process of constitutional evolution which did not disturb the existing, essentially local, arrangements. Elements of course of a centralised prosecution system did exist. For example the role of the Attorney General is well established. But in England this office is that of a high official; there are no local branches of the Attorney General's office which could have become prosecutors. In the United States, the origin of the very powerful prosecutor system, the office of District Attorney, is a distant derivation from the office of Attorney General as it emerged in the old colonial context.

Victim and police as prosecutors 

Well into the nineteenth century the responsibility for the initiation of criminal prosection lay with the victim rather as in civil litigation. It is still possible to initiate a private criminal prosecution. Readers may recall that in 1995 the family of the murdered black teenager Steven Lawrence, out of a frustration with the apparent lack of action by the authorities, took out a private criminal prosecution against those they suspected of his murder. This was the first private criminal prosecution for over 100 years.

Obviously, in a modern urban society a system of private prosecution by victims is totally impractical. But as private prosecution declined during the nineteenth century it was not replaced by a system of public prosecution. Rather, the new public police forces began themselves to fill the vacuum and to take over prosecutions in a de facto way. The increasing dependence of the victim on the police to track down the suspect and gather evidence for evidence, meant that effectively the police were taking over prosecutions. Besides, if police had put in work tracking down an offender then they would regard their time as having been wasted if the victim then decided not to prosecute.

Various reformers during 19th century, including Sir Robert Peel, the founder of the Metropolitan Police, had tried to bring the Scottish system of an independent prosecutor into England and Wales, but had been resisted by the London Bar which made much money from acting for victims and police in the Crown Courts. Also, the instincts of the ruling classes, in particular the Tory landowners, were that anything that extended the powers and role of central government was a threat to (their) liberty and their control over the way the law was to be used. The new police had been resisted initially, but accepted because it provided a service that could not be privately provided. The police had taken over the function of prosecution and it came to be seen as proper that they should do so. Private prosecution was still a possibility for those who had the wealth to conduct it.

In 1879 the Prosecution of Offenders Act created the post of Director of Public Prosecutions (DPP) under the direction of the Attorney General to act as the Crown's representative in important cases, But there was still no body of local prosecutors under the DPP. As far as local prosecution was concerned it remained the police. Police officers would prosecute in the Magistrates Courts and would employ solicitors and barristers to conduct cases in the Crown Courts. Many forces established their own prosecuting solicitors departments or had law firms which acted for them regularly. Over the years various Royal Commissions commented on the unacceptability of having responsibility for investigation and prosecution of crime both in the hands of the police. These included the Royal Commission upon the Duties of the Metropolitan Police of 1908 and the Royal Commission on the Police of 1962. Nevertheless the situation remained unchanged right up to 1985.

The Crown Prosecution Service

When talking about criminal investigation in the previous lecture I said that by the end of the seventies a number of high profile cases had highlighted problems with reliance on the police as prosecutors and their obvious inability to stand back from their own orientation towards getting a result and look at the case strictly from the standpoint of effective prosecution. In particular the pressures of police work lead to

• A tendency to focus on the first suspect and build a case around them. This can lead to ignoring other evidence. 

• An over-reliance on confessions, particularly in the Maxwell confait case and the terrorist cases (Judith Ward, Guildford four, Birmingham six which were overturned as unsafe during the 1990s 

• Pay insufficient attention to the quality of evidence which might be useful as a lead to police investigation but not necessarily reliable from trial point of view

After the Maxwell Confait case was overturned a Royal Commission on Criminal Procedure was established and reported in 1981. The Report of the Commission highlighted a number of issues and pointed out that high acquittal rates in the courts were an indication of weak prosecution preparation. In particular many acquittals were due to the judge stopping the trial after the prosecution (i.e. the police) had presented its case or directing the jury to acquit at the end of the trial. The Commission recommended the establishment of a Crown Prosecution Service for England and Wales.

The mid-1980s saw two key pieces of legislation: the 1984 Police And Criminal Evidence Act which, as mentioned in the previous lecture, required the recording of police interviews, and the 1985 Prosecution of Offenders Act which carried into effect the Royal Commission recommendation and created a separate Crown Prosecution Service (CPS) in England and Wales which became operational in 1986. The DPP as the head of the CPS who would now at last have a body of prosecutors under their direction.

The role of the CPS is to take case to court and as part of that process to review the police case from the standpoint of possible discontinuance of weak cases. The CPS applies two rules to determine, quite independently of the police, whether to proceed.

• evidential sufficiency: a 'realistic prospect of conviction' (anticipating the likely reaction to the case by magistrates or jury). The most common evidential reasons for discontinuance are: absence of corroborating evidence, absence of evidence of a key aspect of the offence (e.g. presence of the accused at scene of crime), unreliable identification and problems with witnesses (such as unreliability and reluctance to testify) 

• public interest: it must be regarded as in the public interest to continue the prosecution. The views of the victim can be taken into account though the latter has no right to a veto on discontinuance.

The CPS took over from the police the role of prosecution in the Magistrates courts but was still obliged to hire separate barristers (often the barristers who had previously represented the police) as prosecutors in the Crown Courts. But nevertheless it was the CPS and not the police who were prosecuting. Did we now have a proper effective prosecution service similar to other jurisdictions? Not yet!

Early weakness of CPS 

The CPS, as set up in 1985 was not really a proper public prosecutor like the US District Attorney or the Scottish Procurator Fiscal. It did not have the power to:

• Supervise or direct the police investigation or require the police to make further inquiries in a particular case where it was considered in the public interest to prosecute but where evidence was not seen as sufficient.

• Make the initial decision to prosecute. It could only decide to discontinue cases which failed both the evidential sufficiency and public interest criterial. Also it could not modify the charges if they were considered inappropriate; for example if a different or lesser charge would increase the chances of securing a conviction

• Directly interview witnesses and access raw police evidence, forensic reports etc. so as to make up its own mind as to how the case should be conducted.

The lack of resources, and sufficient powers, to review the case, to interview witnesses or to instruct the police as to how to work on a case made the CPS very dependent on police definitions of the case as prepared by the police Administrative Support Units. For example in one notorious case the police had charged a women with criminal damage and it turned out she had just been raped. The CPS only came to know about the rape because it was mentioned by the police in passing. The CPS could have asked (though not instructed) the police to investigate the rape but didn't.

So in reality the early CPS was less a public prosecutor than a sort of filtering mechanism to sift out weak or unsuitable cases. However, in the early days the CPS did not seem to be weeding out weak cases. The average discontinuance rate was 12%. According to critics there seemed no consistency as to what cases were dropped or proceeded with. Neither was much evidence of a reduced rate of acquitals indicating that only robust cases are being brought. But this was probably a product of the lack of power of the CPS to question the police initial construction of the case. (McConville et al. 1991, Baldwin 1997) There was a sort of 'uneasy peace' between police and CPS

Shifts in the Political Environment

The overturning of the Guildford Four convictions in 1989, the Birmingham Six in 1991 and the Judith Ward conviction in 1992 gave rise to a second commission, the Royal Commission on Criminal Justice which looked at all aspects of the criminal justice system in England and Wales and reported in 1993. As far as prosecution was concerned the Commission missed an opportunity to increase the powers of the CPS and remedy the weaknesses noted above.

But it should be noted that the initial criticisms of the CPS was that it was unable to function as a mechanism to filter out inefficient or misdirected police investigations. The division between investigation and prosecution was to be seen as a separation, or balance, of powers which would guarantee the rights of the accused. This view of the role of the CPS was located firmly in the due process persective. Despite the importance of the overturning of further convictions by the Court of Appeal in the early 1990s the political atmosphere was shifting from an emphasis on due process towards a concentration on effective crime control. The rising crime rates, public fear of crime, criticism of low police clearup rates mentioned in the previous lectures all fuelled the Conservative government's emphasis on Efficiency and effectiveness. From the standpoint of these key slogans the important issues came to be seen as the removal of 'obstacles' to effective prosecution such as right to silence and changing the rules governing prior disclosure of evidence by the defence. Thus the Criminal Justice and Public Order Act 1994 enabled the court to draw inferences from a suspects refusal to answer police questions.

Increasingly, the CPS was looked at, less from the standpoint of safeguarding the rights of the accused, but from that of how to increase the effectiveness of prosecution: the criticism of the work of the CPS became not so much that it was failing to discontinue enough cases badly constructed by police investigators but that it was failing to prosecute enough cases. There were several voices making this type of critique. For example many feminists were critical of the behaviour of the CPS in areas of sexual assault.

Sue Lees and Jeanne Gregory (1999) in their book Policing Sexual Assault made three criticisms of the CPS along these lines

• Decisions to prosecute: The CPS appeared to be discontinuing too many sexual assault cases that the police thought should be prosecuted. Lees and Gregory refer to two feminist pressure groups: Women Against Rape and Legal Action for Women who compiled a dossier of 15 rape cases which should have, in their opinion, been prosecuted but which were not. They sent this to the DPP asking, unsuccessfully, for a review of the cases. They complained that the CPS was making such discontinuance decisions without meeting the witnesses to see how they felt about the case.

• The process of prosecution: The CPS was ignoring witness, not getting crucial information from them, not going through their statements with them and thus ignoring crucial issues in the trial. They also complained that the process whereby the CPS was reducing charges to make it easier to get a conviction was working against the interests of many victims of sexual assault.

• Unaccountability of CPS: They argued that the 1996 Glidwell reforms (see below) of the CPS had led to excessive centralisation and that the concern with performance indicators led to dropping difficult cases (among which were many sexual assault cases) too early without proper consideration. This is an interesting point which parallels the critique of police performance indicators made in the previous lecture. Just as measuring police efficiency in terms of numbers of clearups can lead to a concentration on easy to solve crimes, by measuring the efficiency of a prosecution system in terms of numbers of cases prosecuted can lead to a high discontinuance rate for time consuming prosecutions of difficult cases.

1996 Glidewell report 

In the context of these types of concerns with effectiveness the government ordered a review of the working of the CPS. The Glidewell report of 1996 recommended reorganisation of the CPS. The main changes implemented were

• CPS areas were reorganised to become coterminus with police force areas, under an Area Chief Prosecutor. 

• Police Administration Support Units were amalgamated with the Crown Prosecution Service to form centralised Criminal Justice Units. 

• CPS to take over the case after police charge, look after witnesses etc. There was to be more focus on the interests of victims

But nevertheless certain key weaknesses of the CPS by comparison with other, similar, prosecution systems (e.g Scotland, USA) remained. It was still the police who retained the discretion whether to prosecute in all cases, even for serious offences. The CPS could not prosecute where the police had decided not to

2001 Auld Report 

A further major inquiry by Lord Justice Robin Auld into the working of all aspects of the criminal justice system reported in 2001. (web site) Auld recommended further powers for the CPS to bring it more into line with the Scottish Procurator Fiscal system. Chapter 10, para 12 of his report reads as follows: 

A strong and independent prosecutor

12. The Crown Prosecution Service has still to fill its proper role which, in my view, should be closer to the more highly regarded Procurator Fiscal in Scotland or the Office of the Director of Public Prosecutions in Northern Ireland.... The prosecutor should take control of cases at the charge or, where appropriate, pre-charge, stage, fix on the right charges from the start and keep to them, assume a more direct role than at present on disclosure and develop a more proactive role in shaping the case for trial, communicating appropriately and promptly with all concerned. For all this the Service needs greater legal powers, in particular the power to determine the initial charge, and considerably more resources, in particular trained staff and information technology, than it has had in the first fifteen years of its life and than presently proposed. The Government has recently committed itself to provide "a better resourced, better performing Crown Prosecution Service, more effective in prosecuting crime and progressing good quality cases for court". These are fine words, but are reminiscent of previous expressions of intent that were not implemented.

I recommend that the Crown Prosecution Service should be given greater legal powers, in particular the power to determine the initial charge, and sufficient resources to enable it to take full and effective control of cases from the charge or pre-charge stage, as appropriate.

In Scotland, the determination of the charge is a normal function of the Procurator Fiscal. Similar powers are exercised by prosecutors in the United States, Canada and similar jurisdictions.

Auld said lots of things which hit the headlines, especially about restricting right of the accused to choose jury trial. We shall deal with this later. The government's response to Auld took the form of a White Paper in 2002:

2002 Justice for All 

The White Paper Justice for All 2002 sent a clear signal that the orientation of the criminal justice system was to be towards more effective prosecution, effective control of crime, rather than due process and an orientation to protecting the rights of the accused.

"We need to send the clearest possible signal that the criminal justice system will be effective in detecting crime, in bringing offenders to court, in convicting those who are guilty and in sentencing them properly… To get more defendants to court, there will be the closest possible working between the police and the Crown Prosecution Service to make sure that cases do not slip between the cracks because of poor case preparation or inadequate charging.

"To convict more of the guilty, we will ensure that the case focuses on the relevant issues, and does not have any surprises, because the prosecution and defence will disclose their cases more fully pre-trial."

Thus the whole emphasis on preventing unsafe convictions which was around at the beginning of the CPS has now shifted. The basis for a prosecution system independent of the police is no longer so much that it should be a check on police incompetence but that police and prosecution should become part of a tough, effective crime control system. The CPS acts now as a sort of refining mechanism to get the right charges that stick and this will be measured by efficiency monitors. Priority targets are 'Narrowing the Justice Gap' i.e. bringing more offenders to justice rather than simply assuring that only the guilty are convicted. 

A number of pilot schemes were set up in various parts of England and Wales in 2002 to see how Auld's recommendation that the CPS take over responsibility for charging worked out in practice. They were seen as a success and were included, together with other elements of the Auld recommendations in the Criminal Justice Act 2003. 

The working of the new system is described by Observer journalist David Rose:

Criminal Justice Act 2003 

This legislation gives the Crown Prosecution Service responsibility for determining the charge in cases other than for routine offences or where the police need to make a holding charge. The idea is that by involving the prosecutor at an earlier stage, after a suspect has been identified, but before a charge is made, legal advice can be provided to the police investigators to ensure that sufficient relevant evidence is collected to support a relevant charge. We have now come into line with some aspects of the Scottish and North American systems. But a possible danger is that given the historic independence of the police in the prosecution process, and the newness of the CPS, the latter comes to act less as a check on the police and rather more as simply the prosecutorial arm of a single police-prosecution section of the Criminal Justice System. What began as being separated out in the interests of justice is now effectively amalgamated in the interests of efficiency and 'Narrowing the Justice gap'

Interviewing witnesses

Lord Justice Auld's recommendations that the CPS assume the mantle of the Scottish Procurator Fiscal still lacks some vital components: one was the direct interviewing of witnesses prior to trial. Not to be able to do so seems arbitrary when the CPS is involved now in the bringing of charges. Even at the outset it was obvious that the attempt by a body other than the police to impose the evidential sufficiency test for bringing a case to court is hindered if only the police can interview witnesses. In Scotland the interviewing witnesses is a normal part of the work of the Procurator Fiscal. It is known as precognition.

Matters appeared to come to a head in December 2004 after a number of high profile criminal trials in which doubt was cast on the reliability or competence of one of the main prosecution witnesses. This was most notable in the trial of four youths accused of killing Damilola Taylor. The evidence of the prosecution's main witness, a 12-year-old girl, was thrown out after the judge ruled it was unreliable.

Pre-trial witness interviews would be carried out where the prosecutor considers it necessary to confirm the reliability or otherwise of a witness’s evidence in deciding whether there is a realistic prospect of conviction, or to clarify the evidence which the witness can give. How to implement this is currently (2006) being considered by a working party.