Introduction
Introduction
Let me begin with two caricatures and clichés: England and Wales is a common law-based adversarial criminal justice system. This is by contrast with most European systems which are civil law-based inquisitorial systems. These are clichés because they are repeated so often and caricatures because they are only partially true (particularly as they group together ‘European’ systems as if they are all the same). However, like most clichés and caricatures they contain a core of truth and are therefore useful starting points.
Before professional police forces were established in England and Wales in the years following 1829, and for some time thereafter, neither local nor central government accepted responsibility for day-to-day law enforcement. Prosecutions could be initiated by anyone. Suspects were generally prosecuted, if at all, by the victim, and no special prosecution powers were provided to the police or to anyone else. In fact, prosecution decisions were judicially controlled (at least in form), reflecting the inquisitorial (not adversarial) origins of the system.
As police forces developed and police powers increased, victims increasingly came to expect the police to initiate and conduct prosecutions for them. Extra arrest powers were provided to the police and they developed the practice of ‘charging’ suspects themselves without seeking permission from the judiciary. The police thus began to take control of prosecution decisions but no specific prosecution powers or responsibilities were conferred on the police. Thus the police had, and still have, complete discretion regarding prosecution decisions. This is a defining characteristic of the common law ‘opportunity’ or ‘expediency’ approach. Private prosecution remained the model on which police prosecutions were based, and the right of private prosecution remains. This is often said to be the main safeguard for victims of crimes that the police refuse to prosecute. However, the right to privately prosecute is now restricted in two ways. First, some types of crime are prosecutable only by the agencies that are given that role in the legislation that establishes the crime itself e.g. the Health and Safety Act 1984 that creates health and safety crimes and established the health and safety executive to prosecute them also restricts the right of prosecution to that agency alone. Second, the Crown Prosecution Service (CPS), which we shall see was established 20 years ago to prosecute for the police, has the right to ‘take over’ (and, if it wishes, to abandon) any private prosecution it wishes.
In the absence of specific laws to regulate their prosecutions, the police evolved their own systems. They prosecuted most of their own cases in the magistrates’ courts (lower courts), some forces allocating specific officers to undertake this task. For Crown Court cases (more serious cases, tried in the higher courts), they instructed solicitors who then instructed barristers. Gradually the larger police forces began to employ their own solicitors. Under the traditional solicitor-client relationship, prosecuting solicitors had to carry out the instructions of the police. If the police insisted on prosecuting a weak case there was little or nothing the prosecutor could do about it (see Chapter III for a short discussion of the odd British system of solicitors and barristers).
In 1981 the Royal Commission on Criminal Procedure (Philips Commission) proposed an independent prosecution service which would take over cases which the police had decided to prosecute. If the prosecutor did not agree with the police, the case could be dropped, the charges changed, or more evidence sought. This was accepted by the government, which established the Crown Prosecution Service (CPS ) by the Prosecution of Offences Act 1985. The head of the CPS was to be the Director of Public Prosecutions (DPP). The DPP was first established in 1879 with the function of advising the police on criminal matters and handling particularly important cases. At the time of the establishment of the CPS, the office of the DPP (which comprised around 70 lawyers) handled murders, other very serious cases, and prosecutions of police officers. The sudden jump to a national service, with an initial establishment of over 1,500 lawyers – many of whom were the solicitors previously employed to prosecute by the police – created severe problems. These included (and still include) under-staffing and difficult relationships with the police. These relationship problems varied from over-identification with police goals and methods in some areas (especially where the CPS consisted largely of the prosecuting lawyers that had previously existed) to a ‘bunker mentality’ of non-communication in others.
Nothing so far has been said about prosecutions by non-police agencies. In fact, a huge number of different laws and criminal activities are dealt with by other agencies – e.g. tax laws by the Inland Revenue and Customs and Excise; health and safety laws by the Health and Safety Executive. In these respects the situation is similar to that of the police before 1985: the agencies that enforce the law are responsible for their own prosecutions, and they have complete discretion regarding prosecution decisions. The main difference is that, unlike ‘normal’ crime enforced by the police, in most non-police crimes there is no right of private prosecution. As with the CPS, most lower court prosecutions are conducted by lawyers employed by these agencies, while higher court prosecutions (the few that there are) are conducted by barristers in private practice.
Finally, a brief word about the rest of Britain. Northern Ireland is very similar to England and Wales. For many years it too had a police-based prosecution system. Now it too has a DPP with a public prosecution service similar to the CPS. Scotland has had a public prosecution service – the procurator fiscal service – for a very long time. Although there are some formal differences between it and the CPS, it operates similarly and has a similar relationship with the police. Thus in general, the broad analysis and conclusions in this report can be applied to Scotland and Northern Ireland.
Let me begin with two caricatures and clichés: England and Wales is a common law-based adversarial criminal justice system. This is by contrast with most European systems which are civil law-based inquisitorial systems. These are clichés because they are repeated so often and caricatures because they are only partially true (particularly as they group together ‘European’ systems as if they are all the same). However, like most clichés and caricatures they contain a core of truth and are therefore useful starting points.
Before professional police forces were established in England and Wales in the years following 1829, and for some time thereafter, neither local nor central government accepted responsibility for day-to-day law enforcement. Prosecutions could be initiated by anyone. Suspects were generally prosecuted, if at all, by the victim, and no special prosecution powers were provided to the police or to anyone else. In fact, prosecution decisions were judicially controlled (at least in form), reflecting the inquisitorial (not adversarial) origins of the system.
As police forces developed and police powers increased, victims increasingly came to expect the police to initiate and conduct prosecutions for them. Extra arrest powers were provided to the police and they developed the practice of ‘charging’ suspects themselves without seeking permission from the judiciary. The police thus began to take control of prosecution decisions but no specific prosecution powers or responsibilities were conferred on the police. Thus the police had, and still have, complete discretion regarding prosecution decisions. This is a defining characteristic of the common law ‘opportunity’ or ‘expediency’ approach. Private prosecution remained the model on which police prosecutions were based, and the right of private prosecution remains. This is often said to be the main safeguard for victims of crimes that the police refuse to prosecute. However, the right to privately prosecute is now restricted in two ways. First, some types of crime are prosecutable only by the agencies that are given that role in the legislation that establishes the crime itself e.g. the Health and Safety Act 1984 that creates health and safety crimes and established the health and safety executive to prosecute them also restricts the right of prosecution to that agency alone. Second, the Crown Prosecution Service (CPS), which we shall see was established 20 years ago to prosecute for the police, has the right to ‘take over’ (and, if it wishes, to abandon) any private prosecution it wishes.
In the absence of specific laws to regulate their prosecutions, the police evolved their own systems. They prosecuted most of their own cases in the magistrates’ courts (lower courts), some forces allocating specific officers to undertake this task. For Crown Court cases (more serious cases, tried in the higher courts), they instructed solicitors who then instructed barristers. Gradually the larger police forces began to employ their own solicitors. Under the traditional solicitor-client relationship, prosecuting solicitors had to carry out the instructions of the police. If the police insisted on prosecuting a weak case there was little or nothing the prosecutor could do about it (see Chapter III for a short discussion of the odd British system of solicitors and barristers).
In 1981 the Royal Commission on Criminal Procedure (Philips Commission) proposed an independent prosecution service which would take over cases which the police had decided to prosecute. If the prosecutor did not agree with the police, the case could be dropped, the charges changed, or more evidence sought. This was accepted by the government, which established the Crown Prosecution Service (CPS ) by the Prosecution of Offences Act 1985. The head of the CPS was to be the Director of Public Prosecutions (DPP). The DPP was first established in 1879 with the function of advising the police on criminal matters and handling particularly important cases. At the time of the establishment of the CPS, the office of the DPP (which comprised around 70 lawyers) handled murders, other very serious cases, and prosecutions of police officers. The sudden jump to a national service, with an initial establishment of over 1,500 lawyers – many of whom were the solicitors previously employed to prosecute by the police – created severe problems. These included (and still include) under-staffing and difficult relationships with the police. These relationship problems varied from over-identification with police goals and methods in some areas (especially where the CPS consisted largely of the prosecuting lawyers that had previously existed) to a ‘bunker mentality’ of non-communication in others.
Nothing so far has been said about prosecutions by non-police agencies. In fact, a huge number of different laws and criminal activities are dealt with by other agencies – e.g. tax laws by the Inland Revenue and Customs and Excise; health and safety laws by the Health and Safety Executive. In these respects the situation is similar to that of the police before 1985: the agencies that enforce the law are responsible for their own prosecutions, and they have complete discretion regarding prosecution decisions. The main difference is that, unlike ‘normal’ crime enforced by the police, in most non-police crimes there is no right of private prosecution. As with the CPS, most lower court prosecutions are conducted by lawyers employed by these agencies, while higher court prosecutions (the few that there are) are conducted by barristers in private practice.
Finally, a brief word about the rest of Britain. Northern Ireland is very similar to England and Wales. For many years it too had a police-based prosecution system. Now it too has a DPP with a public prosecution service similar to the CPS. Scotland has had a public prosecution service – the procurator fiscal service – for a very long time. Although there are some formal differences between it and the CPS, it operates similarly and has a similar relationship with the police. Thus in general, the broad analysis and conclusions in this report can be applied to Scotland and Northern Ireland.
