The Relation between the Public Prosecutor and the Police
Chapter I
The Relation between the Public Prosecutor and the Police
Control of the police
As stated earlier, enforcement agencies, including the police, are responsible for their own investigations. Prosecutors have no responsibilities at all for the actions, or neglectful behaviour, of investigators. It follows that senior police officers themselves have to ensure that junior officers adhere to the law. This is an inevitably flawed system. It is an oft-quoted legal maxim that the police are ‘accountable to the law’. This means that the criminal courts in which the prosecutions occur are responsible for dealing with breaches of the law by the police (where this is discovered). But this is also a flawed process, since conflicts can occur between the demands of truth (e.g. evidence obtained illegally by police may be reliable and, if used, could ensure a conviction) and justice (e.g. the courts could punish the illegality by refusing to use the evidence which could lead to the prosecution failing).
There are other forms of police accountability: political/operational, to central and local governmental bodies (Police Act 1996); disciplinary, through a complaints process controlled by a civilian body. The current Police Complaints Authority, established by PACE 1984, will be replaced in April 2004 by a more independent body, the Police Complaints Commission, with greater powers (Police Reform Act 2002); to civil courts, whereby victims of abuse can seek civil damages from the police; and to Inspectorates: there are different Inspectorates for the police, for the CPS and for other criminal justice agencies (although two or more sometimes work together). Criminal justice agencies have to co-operate with the Inspectorates. Note that if a complaint is that the abuse of power was a criminal act (such as corruption, assault, etc), the public prosecutor does have a role in the form of the national office: one section of this office makes decisions about whether or not to prosecute police officers accused of criminal acts following investigation by police officers assigned this task (Sect. 75 Police Act 1996).
Police investigations
Since the police are completely responsible for their own investigations it follows that they need not consult with prosecutors on any investigative matters. It also follows that prosecutors are not entitled to give the police instructions on investigative matters. However, it would be misleading to say nothing more on this.
First, the police are allowed to seek advice from prosecutors about any aspect of any of their work. Although they seek advice prior to the start of, or during, an investigation in relatively few cases, they tend to do this in the most serious and most complex of cases. Sometimes the advice is about the legality of particular procedures; sometimes about whether or not there is sufficient evidence to prosecute; sometimes about what further investigation would be useful to construct a strong case.
Second, after the police decide whether or not to prosecute the case is passed onto the CPS. The CPS may continue the prosecution or drop it, or reduce the severity/number of charges. The CPS sometimes discusses with the police these different options, and will sometimes tell the police that unless they undertake particular further investigation they will drop the case or alter/reduce the charges.
Third, although the police need not (indeed, cannot) seek permission from the CPS for the use of informers, intrusive surveillance methods, extended detention etc, they must secure judicial authorisation (usually from magistrates) to use some of these investigative methods. The details vary according to the power sought. Examples include detention exceeding 36 hours prior to charge (available for serious offences only); phone tapping; some types of search. For arrest, detention up to 24 (sometimes 36) hours, interrogation, most searches, use of informers, ‘sting’ operations and many other actions and powers, no permission need be sought by police from anyone.
Finally, the CPS does not agree investigative priorities with the police, and the police remain legally independent – they may investigate what they wish, and may decide not to investigate what they wish (subject to positive human rights duties), under the ECHR, now incorporated into English law by the Human Rights Act 1998. However, the other bodies to whom the police are accountable do play a role in setting priorities, in discussion with the police. This is usually done at a local – police area – level. There are, for example, under the Crime and Disorder Act 1998, Crime and Disorder partnerships with local authorities.
Recent developments: the tension between ‘joined up’ co-operation and independence
Recent developments illustrate the response of government to both these types of tension. We saw earlier that there has been the problem in some areas of a ‘bunker mentality’, whereby CPS was unwilling to have any type of relationship with police. Communication, for example, was always in a written form only. As a former DPP put it: “Suddenly a steel curtain came down between the two services and this went a bit too far. People in both services, both the police force and ourselves, felt that we must keep our distance, we must not talk to each other, we must not communicate, the CPS is independent of the police and must be seen to be so”. Yet we also saw the problem, in other areas, of the CPS identifying too closely with the police.
Closer involvement with police was originally promoted officially by the Narey report (Narey, Review of delay in the criminal justice system, London, Home Office, 1997), and then by the Glidewell enquiry (Glidewell, Review of the CPS, London, Home Office, 1998). Glidewell could have decided that if bureaucratic independence was undesirable, accountability to one or more of the following could be recommended: victims, police, local communities, or the wider society. Without explicitly debating the merits of each possibility, Glidewell recommended ‘closer and more effective co-operation between the agencies at local level, in response to local needs and conditions’. These ‘local needs and conditions’ were not to be identified through local democratic processes, however, but by the police. Not long after the establishment of the CPS in 1986, local accountability for the police was attenuated by reducing the elected element in local police authorities. Thus not only is the CPS more tied into the police than it ever has been, but the influence of locally elected bodies on the police (and therefore on the CPS) has waned.
Glidewell set out five objectives for the CPS. Four were concerned with efficiency and quality of decision-making (including fairness to the defendant) and the fifth with ‘meeting the needs of victims and witnesses under the Victim’s Charter’. While there is nothing wrong with these objectives the omission of the local democratic element is striking. Glidewell did recommend some ‘local answerability’, but explicitly rejected any involvement with local police authorities or police consultative committees. The emphasis on efficiency, quality of decision making and co-operation between police and CPS has led to the establishment of joint police-CPS ‘criminal justice units’ in every CPS/police area (one or more depending on the size of the area). Decisions in, and processing of, cases (following completion of investigation) will increasingly be done jointly by police and CPS in these units. The aim is to cover all cases in the early stages, and to cover most cases until completion. Serious cases, that will be heard in the Crown Court, are passed onto ‘trial units’ manned by the CPS only.
On the other hand, the government seems to have accepted criticism that the CPS is a police-dependent body. This is not just a matter of, in many instances, over-identification with police goals and ideology, but also a structural problem: that while the police made the initial decisions the CPS were not decision makers, but decision-reversers. Decisions to prosecute are now to be taken by the CPS, not police. This was legislated in the Criminal Justice Act 2003 but the changes will be brought in gradually through 2004 and 2005. This change should increase CPS independence, although the problem of case construction will remain i.e. the CPS will still be assessing cases prepared by the police, usually without any prosecutor involvement.
The Relation between the Public Prosecutor and the Police
Control of the police
As stated earlier, enforcement agencies, including the police, are responsible for their own investigations. Prosecutors have no responsibilities at all for the actions, or neglectful behaviour, of investigators. It follows that senior police officers themselves have to ensure that junior officers adhere to the law. This is an inevitably flawed system. It is an oft-quoted legal maxim that the police are ‘accountable to the law’. This means that the criminal courts in which the prosecutions occur are responsible for dealing with breaches of the law by the police (where this is discovered). But this is also a flawed process, since conflicts can occur between the demands of truth (e.g. evidence obtained illegally by police may be reliable and, if used, could ensure a conviction) and justice (e.g. the courts could punish the illegality by refusing to use the evidence which could lead to the prosecution failing).
There are other forms of police accountability: political/operational, to central and local governmental bodies (Police Act 1996); disciplinary, through a complaints process controlled by a civilian body. The current Police Complaints Authority, established by PACE 1984, will be replaced in April 2004 by a more independent body, the Police Complaints Commission, with greater powers (Police Reform Act 2002); to civil courts, whereby victims of abuse can seek civil damages from the police; and to Inspectorates: there are different Inspectorates for the police, for the CPS and for other criminal justice agencies (although two or more sometimes work together). Criminal justice agencies have to co-operate with the Inspectorates. Note that if a complaint is that the abuse of power was a criminal act (such as corruption, assault, etc), the public prosecutor does have a role in the form of the national office: one section of this office makes decisions about whether or not to prosecute police officers accused of criminal acts following investigation by police officers assigned this task (Sect. 75 Police Act 1996).
Police investigations
Since the police are completely responsible for their own investigations it follows that they need not consult with prosecutors on any investigative matters. It also follows that prosecutors are not entitled to give the police instructions on investigative matters. However, it would be misleading to say nothing more on this.
First, the police are allowed to seek advice from prosecutors about any aspect of any of their work. Although they seek advice prior to the start of, or during, an investigation in relatively few cases, they tend to do this in the most serious and most complex of cases. Sometimes the advice is about the legality of particular procedures; sometimes about whether or not there is sufficient evidence to prosecute; sometimes about what further investigation would be useful to construct a strong case.
Second, after the police decide whether or not to prosecute the case is passed onto the CPS. The CPS may continue the prosecution or drop it, or reduce the severity/number of charges. The CPS sometimes discusses with the police these different options, and will sometimes tell the police that unless they undertake particular further investigation they will drop the case or alter/reduce the charges.
Third, although the police need not (indeed, cannot) seek permission from the CPS for the use of informers, intrusive surveillance methods, extended detention etc, they must secure judicial authorisation (usually from magistrates) to use some of these investigative methods. The details vary according to the power sought. Examples include detention exceeding 36 hours prior to charge (available for serious offences only); phone tapping; some types of search. For arrest, detention up to 24 (sometimes 36) hours, interrogation, most searches, use of informers, ‘sting’ operations and many other actions and powers, no permission need be sought by police from anyone.
Finally, the CPS does not agree investigative priorities with the police, and the police remain legally independent – they may investigate what they wish, and may decide not to investigate what they wish (subject to positive human rights duties), under the ECHR, now incorporated into English law by the Human Rights Act 1998. However, the other bodies to whom the police are accountable do play a role in setting priorities, in discussion with the police. This is usually done at a local – police area – level. There are, for example, under the Crime and Disorder Act 1998, Crime and Disorder partnerships with local authorities.
Recent developments: the tension between ‘joined up’ co-operation and independence
Recent developments illustrate the response of government to both these types of tension. We saw earlier that there has been the problem in some areas of a ‘bunker mentality’, whereby CPS was unwilling to have any type of relationship with police. Communication, for example, was always in a written form only. As a former DPP put it: “Suddenly a steel curtain came down between the two services and this went a bit too far. People in both services, both the police force and ourselves, felt that we must keep our distance, we must not talk to each other, we must not communicate, the CPS is independent of the police and must be seen to be so”. Yet we also saw the problem, in other areas, of the CPS identifying too closely with the police.
Closer involvement with police was originally promoted officially by the Narey report (Narey, Review of delay in the criminal justice system, London, Home Office, 1997), and then by the Glidewell enquiry (Glidewell, Review of the CPS, London, Home Office, 1998). Glidewell could have decided that if bureaucratic independence was undesirable, accountability to one or more of the following could be recommended: victims, police, local communities, or the wider society. Without explicitly debating the merits of each possibility, Glidewell recommended ‘closer and more effective co-operation between the agencies at local level, in response to local needs and conditions’. These ‘local needs and conditions’ were not to be identified through local democratic processes, however, but by the police. Not long after the establishment of the CPS in 1986, local accountability for the police was attenuated by reducing the elected element in local police authorities. Thus not only is the CPS more tied into the police than it ever has been, but the influence of locally elected bodies on the police (and therefore on the CPS) has waned.
Glidewell set out five objectives for the CPS. Four were concerned with efficiency and quality of decision-making (including fairness to the defendant) and the fifth with ‘meeting the needs of victims and witnesses under the Victim’s Charter’. While there is nothing wrong with these objectives the omission of the local democratic element is striking. Glidewell did recommend some ‘local answerability’, but explicitly rejected any involvement with local police authorities or police consultative committees. The emphasis on efficiency, quality of decision making and co-operation between police and CPS has led to the establishment of joint police-CPS ‘criminal justice units’ in every CPS/police area (one or more depending on the size of the area). Decisions in, and processing of, cases (following completion of investigation) will increasingly be done jointly by police and CPS in these units. The aim is to cover all cases in the early stages, and to cover most cases until completion. Serious cases, that will be heard in the Crown Court, are passed onto ‘trial units’ manned by the CPS only.
On the other hand, the government seems to have accepted criticism that the CPS is a police-dependent body. This is not just a matter of, in many instances, over-identification with police goals and ideology, but also a structural problem: that while the police made the initial decisions the CPS were not decision makers, but decision-reversers. Decisions to prosecute are now to be taken by the CPS, not police. This was legislated in the Criminal Justice Act 2003 but the changes will be brought in gradually through 2004 and 2005. This change should increase CPS independence, although the problem of case construction will remain i.e. the CPS will still be assessing cases prepared by the police, usually without any prosecutor involvement.
