The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
Absence of Minister of Justice
The first point to note is that the UK has no Ministry of Justice. The functions of such a ministry are split between:
- Home Office: responsible for police and crime generally;
- Lord Chancellor’s Department (renamed Department of Constitutional Affairs): responsible for courts and judges; and
- The Law Officers’ Department: The chief Law Officer is the Attorney General (AG), who is not a member of the Cabinet. He is technically the government’s chief lawyer, chief legal advisor and ‘superintendent’ of the CPS.
The idea that the CPS be established under the ‘superintendence’ of the AG, not his control, reflects the idea that the CPS has a quasi judicial role. Technically, the DPP is responsible to parliament, although this is a fiction. Like the police, the CPS is answerable to the courts alone, and only in respect of individual decisions regarding individual cases (unless an aspect of CPS policy were to contravene the ECHR).
Organisation of the CPS
As stated earlier, the CPS is a national organisation. The Prosecution of Offences Act 1985 still operates and governs the main CPS functions. At its head is the DPP, appointed by government. Traditionally the DPP is an eminent barrister (practising lawyer) who will have spent much or all of his career in private practice, not as a legal bureaucrat. Beneath the DPP is a London Headquarters (also based in York in the north of England) and 42 Area organisations, each headed by a Chief Crown Prosecutor with considerable autonomy. Only a few of the very most serious cases are passed from a local area to HQ, although HQ does have a police discipline function as well as numerous organisational and policy functions. Chief Crown Prosecutors are generally responsible for choosing their own staff, who are organised hierarchically in each area (different tiers of lawyers, and tiers of para-legal staff, administrators and other staff).
The 42 CPS areas (one of which is London, with nearly 20% of the business) correspond with the 42 main police areas (actually there are 43, but 2 are in London). The area structure has been altered several times since 1986, reflecting its origins as groups of prosecuting solicitors tied to the police; and also reflecting conflicting and changing views about what the CPS is for and to who or what it should be accountable. The current government ideology is for a ‘joined-up’ criminal justice system (along with ‘joined-up’ government in general); thus the ‘42 area’ policy has been applied to probation and court services as well as the police and CPS, so that there are, in effect, 42 locally-based criminal justice systems.
The direct effect on police procedures of the establishment of the CPS has been relatively small, for the police make initial decisions in the same ways as previously. Only when the case is passed to the CPS is control relinquished.
CPS prosecutors are generalists. However, this has to be qualified in several ways. First, it should be remembered that the CPS only deals with police prosecutions. Second, barristers conduct the most serious and difficult trials (see Chapter III). Third, some prosecutors have specialist training so that they have a particular expertise in difficult or sensitive areas – such as sexual offences, domestic violence, dealing with vulnerable victims, and so forth.
Prosecution policy
The basic statement of prosecution policy is the Code for Crown Prosecutors. This is a public document formulated by the DPP and revised periodically. It is ‘laid before Parliament’ thus subjecting it – but not individual prosecution decisions – to Parliamentary scrutiny in theory. Although the DPP is responsible for police prosecutions only, all the non-police agencies claim to adhere to it – we shall see, however, that the patterns of prosecution of these different agencies are actually very different.
In practice, Parliament never debates the principles or contents of the Code. Since the police make initial prosecution decisions and the CPS decides whether it agrees with these decisions, the Code – it is not surprising to observe – corresponds very closely with police prosecution policy. This is made by the Home Office, particularly through ‘Circulars’ (instructions) on diversion policy and practice. The underlying principles in both the Circulars and the Code derive from guidelines issued by the Attorney General in 1983, which themselves derive from policy formulated by the DPP in the mid-20th Century, but which was not published until 1981 by the Royal Commission on Criminal Procedure, London, 1981. Although the principles have remained the same, important policies, such as on the extent of diversion, have varied considerably. These have always been generated by political debates and passed onto the CPS through Home Office Circulars and, therefore, policies set for the police by government.
One purpose of the CPS is to ensure that whatever the prosecution policies are, the police adhere to them. The DPP, as the head of the CPS, is responsible for ensuring that his organisation carries out this task adequately. In turn the CPS is supervised by the CPS Inspectorate and the courts. Many ‘judicial review’ cases, for example, have concerned how far the CPS has, or has not, adhered to the provisions of the Code. This gives both defendants and victims the opportunity to challenge CPS and police decisions that they believe fail to respect their rights and interests. It must be doubted, however, whether this is as effective a process as a direct right of challenge would be.
There are two main prosecutions polices. They are presented in the form of ‘tests’. The first is that prosecution may take place only if there is sufficient evidence. This is defined as when a conviction is more likely than an acquittal. It thus requires prosecutors to predict outcome. It does not require them to assess guilt or innocence. If there is insufficient evidence to prosecute, it must not take place (or, if it has already begun, it must be halted) regardless of any other consideration.
The second test is that it must be in the public interest to prosecute. This is a very flexible concept. What one does or does not perceive as in the public interest will vary according to one’s political and social outlook and one’s experiences. If most judges are incapable of escaping this subjectivism, why should we expect objectivism of police officers, the DPP, or the Attorney General? Some guidance is given. The 1994 guidelines state that, if the cautioning pre-conditions are met, the police should take into account the ‘public interest’ criteria set out in the Code for Crown Prosecutors. The Crime and Disorder Act 1998 (CDA) provides similarly for the under 18s. These criteria include the nature of the offence; the likely penalty if the offender were to be convicted; the offender’s age, state of health, previous criminal history and attitude towards the offence (including offers to compensate victims, and so forth); the impact of the offence on the victim. Factors making prosecution more likely include premeditation, the involvement of a group of offenders, a discriminatory motive, or the suspect being under a court order such as bail.
In any one case many of these criteria pull in different directions. An offender may have a criminal record but commit a minor offence for which he has compensated the victim; or may commit a relatively serious offence but have no previous criminal history. The victim may favour or oppose prosecution, or simply be indifferent.
In the majority of cases where there is doubt about whether prosecution is in the ‘public interest’ the alternative to prosecution would be a warning. Also known as ‘diversion’ (that is, diversion from the courts) warnings are part of the armoury of all law enforcement agencies. This is discussed at the end of this chapter.
It is clear from this that the principle of discretion that is at the heart of policing in the UK is also fundamental to the CPS. The CPS is entitled to prosecute any case it wishes (subject to the evidential test), or not prosecute. The ‘public interest’ test can be used to justify almost any decision although entirely irrational decisions or decision clearly at variance with the Code or caution guidelines can be challenged in the courts using the ‘judicial review’ procedure.
Prosecution priorities
As prosecution decisions are discretionary, and policies are established through guidelines and the Code, it is easy for governments to establish prosecution priorities. Some are more public than others. Three recent examples of highly visible policies concern vulnerable victims, domestic violence, and street robbery. All three have become issues where government has urged police and CPS to be ‘tough’. Although government cannot force these agencies to take particular decisions or allocate resources accordingly, by making resources available for these specific issues government has been able to exert considerable influence on policy and, therefore, on decision making. The result in relation to all these three policies is higher prosecution rates and fewer non-prosecution decisions – quite simply, in these areas, prosecution is now almost automatically in the ‘public interest’. This is not to say that these policies automatically translate into police and CPS decisions – government reports complain that they frequently do not. But there is no doubt that prosecutions are higher in these areas now than 5-10 years ago, and that this is due to these specific government policies. (See, for example, HMCPSI, Street Crime report (Home Office, 2003); HMCPSI, Violence at home – A joint thematic inspection of the investigation and prosecution of cases involving domestic violence (Home Office, 2004)).
Whether or not to prosecute ‘political’ offences, such as killings by soldiers and police officers in Northern Ireland, used to be particularly controversial. The same is true of alleged offences by police officers in general. More obvious examples include offences against the Official Secrets Acts, including the leaking of classified information harmful to ministers but, arguably, not to the public. At least with allegedly biased prosecutions the issues can be aired in public. Allegedly biased decisions not to prosecute are of such low visibility that even speculation is difficult. Occasionally, an exceptional case comes to light. A senior judge who crashed her car, causing severe injuries to a passenger was deemed by the police to be in need of a ‘driver rectification scheme’. Despite this, she was not prosecuted for careless driving. The reasons are not known but the decision was taken, exceptionally, by a very high ranking police officer.
The most notable case is the recent prosecution of a government official under the Official Secrets Act for releasing information about the build-up to the Iraq war of 2003. Arguably, the government pushed CPS into prosecuting as ‘government interest’ was deemed to be the same as the ‘public interest’. But as the defendant’s defense would have led to the disclosure of documents that would have embarrassed the government even more, its interest – and thus the ‘public interest’ changed, and so the CPS dropped the case.
Powers and duties of the CPS
All cases that the police wish to prosecute have to be passed to the CPS. The CPS used to decide whether or not to continue the prosecution. Now they will decide whether or not to prosecute (CJA 2003). Because of the discretionary system discussed above, the CPS can prosecute on the charges set by the police, reduce or change those charges, or drop the case entirely (dropping a case is known, in most circumstances, as a ‘discontinuance’). It can drop the case immediately or later. However, these decisions should be based on the criteria in the Code. There are also special recent duties in relation to victims (see Chapter V – the Conclusion), and in relation to court processes and sentencing (discussed in Chapters III and IV). A good example of its exercise of powers is the recent decision to drop the prosecution of the government employee who allegedly broke the Official Secrets Act discussed above.
Note that once a case has begun the court (or perhaps only a Crown Court) can decide what shall happen. Thus, in a notorious serial killer case in the 1970s (the Yorkshire Ripper case) there was evidence to support the view that the defendant was mentally abnormal, but not sufficiently abnormal to be unfit for trial on these grounds. English law provides that defendants charged with murder may be convicted of manslaughter (a lesser form of homicide) if they are mentally abnormal. The prosecution ‘plea bargained’ with the defendant, the ‘deal’ being that if the charges were reduced from murder to manslaughter on these grounds, he would plead guilty. When the prosecutor presented the ‘deal’ to the judge, the judge refused to accept the lowering of the charges and insisted on the trial for murder proceeding. The defendant was convicted of murder.
The CPS has other miscellaneous powers. For example, the CPS can take over any private prosecution and then either continue that prosecution or drop it. Also, the prosecution has a right of appeal against the granting of bail in serious cases, and various rights of appeal against conviction (in magistrates courts only), and against successful appeals by defendants. And there are complex duties to disclose information – regardless of whether or not it will not be used in the proceedings by the prosecution – to the defense.
As part of the CPS power to drop a case on any grounds, it may also advise the police to caution (issue an official warning) when it considers this to be appropriate. But in the past it had no power to issue warnings or conditional waivers. Under the CJA 2003 both police and CPS can issue conditional warnings.
Non-police agencies
Substantial numbers of prosecutions are brought by non-police agencies. Health and Safety offences are dealt with by the Health and Safety Executive (HSE), pollution offences by the Environment Agency, tax evasion by the Inland Revenue, TV licence evasion by the Television Licensing Authority (TVLA), Social Security fraud by the Department of Social Security (DSS), and other frauds by various agencies including the Department of Trade and Industry, and the Serious Fraud Office (SFO). Local authorities are responsible for all sorts of offences including harassment and unlawful eviction of tenants. The British ‘opportunity’ principle has enabled each body to develop its own prosecution policies and patterns which are often radically different to those of the police.
Some 500 people die at work every year (by comparison, there are less than 1,000 ‘official’ homicides each year), thousands die each year from occupational diseases (estimates vary wildly) and there are some 18,000 major work-related injuries annually. The Health and Safety Executive estimates that in most of these incidents the employer was in breach of the Health and Safety at Work Act 1974. Thus, most of these incidents give rise to potential criminal, as well as civil, liability. Fraud is equally serious, in a different way. Just a few major fraud cases equal in value all the theft and burglary cases prosecuted by the police each year. The SFO has a case load of only the 60 or 70 most serious frauds at any one time, their aggregate ‘value’ being estimated, in some years, at more than £5 billion. Doubtless the same is true of tax evasion, where the overwhelming majority of traders’ accounts, for instance, understate profits.
The official policy of the HSE is: ‘Enforcing authorities must use discretion in deciding whether to initiate a prosecution. Other approaches to enforcement can often promote health and safety more effectively but, where the circumstances warrant it, prosecution without prior warning and recourse to alternative sanctions may be appropriate.’
In practice, the decision-making structure of the non-police agencies produces a propensity not to prosecute. Their prosecution decisions are controlled by the organisation, in contrast to the police, where prosecution decisions are controlled by individual officers on the ground. Moreover, since these offences usually take place in private rather than in public (drug offences and social security fraud again being exceptions) offences are not discovered by patrols or members of the public, and, in the absence of coercive detention, confessions are rare. Offences often come to light because of accidents or routine inspections, which are sometimes arranged in advance with the ‘suspect’.
This means that discovering offending without waiting for accidents to happen is difficult. The response has been to seek information from the ‘suspects’ themselves. This requires a different attitude to that of the police on the streets. The result is the development of ‘compliance’ modes of working. Rather than treating their suspects as criminals, regulatory agencies seek to maintain continuing relationships with companies to try to persuade them to comply with the law, and to avoid prosecution wherever possible. Non-police agencies and business criminals ‘bargain and bluff’ with each other. As with cautioning, this is done ‘in the shadow of the law’. The difference here, however, is that the relative bargaining powers are closer to being equal.
When agencies discover offences, they usually warn the offenders informally. Enforcement notices (warning letters) are rare; prohibition notices (stopping work until the law is complied with) are rarer still; and prosecution is the last resort. The compliance approach inevitably leads to a reluctance to prosecute. The HSE prosecutes only 10% of the very few cases it investigates. This is the mirror image of the police and CPS.
It is often said that these crimes and criminals are ‘different’ from those the police and CPS deal with. Significantly, non-police agencies are usually referred to as ‘regulatory’, and their law enforcement processes as ‘regulation’, neutral terms from which stigma and condemnation are removed. Where cause and effect lie here is difficult to say. Does a lack of social stigma lie behind the use of these terms, or do the terms contribute to the lack of stigma? Put this way, one can see that it is not a case of cause and effect at all, but rather of two causes operating on each other in a circular fashion. One result is that neither the public at large nor traditional text books treat ‘regulatory offences’ as ‘real’ crimes (mala in se). They are seen, instead, as mala prohibita not things wrong in themselves, but merely things that society requires to be better regulated. It is sometimes said that the behaviour being controlled resembles acceptable business practice and hence is not mala in se. However, this misses the point that it is business people who construct the image of what practices are to be regarded as acceptable in their world. What many men regard as acceptable, by way of rape and violence, is no longer acceptable to the rest of us and nor should it be. Letting criminals decide by what standards they should be judged tells us more about the sources of power in society than about the acceptability or harm of the behaviour in question.
The only non-police agencies ‘out of line’ are those that deal with the poor and/or street criminals. First, there is the Department of Social Security fraud inspectorate which deals with social security claimants. Second there is the Customs and Excise, which is particularly interesting as it deals with areas as diverse as drugs (classic street crime) and corporate VAT (classic suite crime). Drug offences are enforced and prosecuted by Customs and Excise in the way that the police use the law (i.e., severely), while corporate VAT fraud is enforced in the way that the Inland Revenue enforce the law (i.e., lightly). Third, there is the TVLA. This agency is owned by the Post Office, which collects TV licence fees for the BBC. It is an offence not to possess a current licence if one has a TV, and officially there is no way of negotiating one’s way out of prosecution even though the Code for Crown Prosecutors is supposed to apply. Thousands of people – virtually all from the poorest sections of society and disproportionately women – are prosecuted every year, and literally hundreds are jailed for fine default. Yet the sums of money involved are similar to those which the Inland Revenue collects, without penalty, years after they are due.
Diversion from court (settlement out of court)
Four main problems will be dealt with here: the pre-conditions and criteria for diversion, the scale of diversion, CPS diversion decisions, and police/CPS diversion in comparison with diversion by non-police agencies. Also important, but outside the scope of this paper, is the question of what should be done with (or to) offenders who are diverted (should restorative justice, for example, be usual?), and who should decide this: CPS? Police? Courts?
1. The pre-conditions and criteria for diversion
For under 18s there are two pre-conditions to be met: sufficient evidence of the offender’s guilt to give a realistic prospect of conviction; and admission of the offence by the offender. An ‘appropriate adult’ must be present if the offender is under 17. For adults there are the same pre-conditions, plus the need for the offender’s informed consent. These have been modified by recent legislation (Sect. 23 CJA 2003):
1. The first requirement is that the authorised person has evidence that the offender has committed an offence.
2. The second requirement is that a relevant prosecutor decides:
a. that there is sufficient evidence to charge the offender with the offence; and
b. that a conditional caution should be given to the offender in respect of the offence.
3. The third requirement is that the offender admits to the authorised person that he committed the offence.
4. The fourth requirement is that the authorised person explains the effect of the conditional caution to the offender and warns him that failure to comply with any of the conditions attached to the caution may result in his being prosecuted for the offence.
5. The fifth requirement is that the offender signs a document which contains:
a. details of the offence;
b. an admission by him that he committed the offence;
c. his consent to being given the conditional caution; and
d. the conditions attached to the caution.
These pre-conditions are intended to ensure that, because a caution is a statement of guilt (which can be cited in court), the offender really is guilty and would be convicted if prosecuted. They are due process safeguards, intended to inhibit the police from cautioning whenever they adjudge a suspect to be guilty but they cannot, or would rather not, collect sufficient evidence to support a prosecution.
As a mechanism for protecting innocent suspects from administrative determinations of guilt, the pre-conditions do not work well. Sometimes cautions are administered precisely because there is insufficient evidence, and sometimes in the absence of consent or an admission. Nor is consent or an admission a safeguard in reality. Some juveniles, in particular, are prepared to admit and consent to almost anything to escape from the ‘coercive jaws’ of the criminal process. Offenders are required to ‘bargain in the shadow of the law’. In one case the cautioning inspector admitted that he often offered a caution and then asked the alleged offender if he understood that this amounted to an admission of the offence, with the implicit threat that if the suspect did not agree to this, he or she would be prosecuted instead of cautioned (Metropolitan Police Comr, ex p Thompson, 1977, 1 WLR 1519). Although the Divisional Court held that cautions offered as an inducement to confess, such as happened here, are invalid, it clearly had been a common practice and is unlikely to have been eradicated as a result of this one case.
Another caution was quashed by the Divisional Court after a juvenile was incorrectly told that what he did (watch his cousin shoplift) amounted to theft. It was on this basis that he admitted his ‘guilt’ (Metropolitan Police Comr, ex p P, 1995, 160 JP 367). However, the judge in this case made it clear that the courts will not intervene except in exceptional circumstances: ‘Nothing contained in my judgment is intended to offer any sort of general encouragement to those cautioned to challenge the legality of their cautions. I accept Mr Lewis’ submission in broad terms. Police officers responsible for applying this circular must enjoy a wide margin of appreciation as to the nature of the case and whether the preconditions for a caution are satisfied. As Watkins LJ made clear in ex p L, one would only rarely expect those who have been cautioned to succeed in showing that the decision was fatally flawed by a clear breach of the guidelines.’
The caution guidelines and Code suffer many faults. For example, many of the criteria (listed earlier in this Chapter) are vague: how serious, for instance, is ‘serious’? It is a subjective matter. Secondly, they are manipulable by the police. Cases can be constructed to seem more or less serious. Finally, the cautioning criteria are non-prioritised. In other words, it is impossible to say whether a given decision is right or wrong if an offender ‘scores’ high on one criterion and low on another. The guidelines explicitly state that the victim’s consent is not essential to caution, but no guidance is provided on how far the victim’s views should outweigh other criteria. Thus countless pieces of research have found the police justifying non-prosecution of some cases by reference to the views of the victim, but at the same time prosecuting other cases where the victim did not want prosecution. Only ‘seriousness’ is prioritised, as this is a crucial criterion for deciding whether or not a repeat warning can be given to a juvenile.
2. The scale of diversion
Police warnings (often referred to as ‘cautioning’) attracted little public controversy for many years until their use became so frequent that government and police spokespeople in the early 1990s began to blame them for rising crime rates. The guidelines were then changed to reduce cautioning, and the CPS followed this policy. As the following figures show, the caution rate was at its highest in the early/mid 1990s and have fallen steadily since then in line with changed policy and guidelines. Overall, the 2002 caution rate fell by 1% (as compared to 2001). The overall caution rate of 30% was the lowest level for 10 years.
Source: Home Office, Criminal Statistics England and Wales 1998 (Cm 4649) (London: SO, 2000), Table 5.3. and Home Office, Criminal Statistics England and Wales 2002 (Cm 6054) (London: SO, 2003), Table 2.3.
3. CPS diversion decisions
One of the functions of the CPS is to exercise control over the ‘public interest’ dimension of prosecutions, although it cannot do anything about cases which were cautioned when they should have been prosecuted. Indeed, the police can even tie the hands of the CPS by promising that a case will be dropped. Although discontinuance is the prerogative of the CPS alone, it has been held to be an abuse of process for prosecution to be continued after a promise, even from the police, that it will be dropped (R v Croden Justice ex p Dean, 1993, QB 769). In this case the ‘deal’ was discontinuance in exchange for the suspect giving evidence for the prosecution in a murder trial. This illustrates both the structurally weak position of the CPS as compared to the police, and the way the police use prosecution and non-prosecution in the ‘public interest’ as part of broader policing strategies.
The CPS can, in principle, ensure that cautionable cases are not prosecuted by discontinuing them. The step back in the mid-late 1990s by government from its previous enthusiasm for diversion is reflected in the 1994 Code: ‘In cases of any seriousness, a prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour’ (para 6.2). But even if the CPS is right to accept government policy on the scale of diversion, it should still exercise control over police inconsistency (or abuse) in their application of the criteria and pre-conditions. Nearly one-third of discontinuances are on ‘public interest’ grounds. However, the CPS only rarely recommends that a caution be substituted. Given the propensity of the police to initiate prosecutions in cautionable cases these figures seem low. On the other hand, by the time the CPS discontinues cases it is sometimes too late to suggest a caution instead (because the matter has become ‘stale’). A realistic view of the proportion of cases discontinued by the CPS that should be cautioned by the police on public interest grounds (rather than marked for prosecution) would be somewhere between around 6% and a third. Ultimately, it remains unclear whether most cautionable cases are being correctly identified by the CPS, but is very unlikely.
Police case construction makes it often difficult and sometimes impossible to identify cautionable (and evidentially weak) cases. Factors which could point towards caution or other forms of diversion are downplayed in the file, or such facts are not brought out by the police because of failure to ask appropriate questions. Further, pro-police CPS attitudes and practices are entrenched features of an agency whose raison d’être is prosecution. As with the police, if one is concerned with the protection of the interests of suspects, the last place to seek that protection is in an agency with an adversarial relationship with those suspects which, moreover, depends for all of its information on another agency with an adversarial relationship with suspects.
How, then, is the substantial number of ‘public interest’ discontinuances to be explained? Well over half of them are because a nominal penalty is expected, the defendant is charged with other serious offences or the offence is in some other way too trivial to be prosecuted. At a time of managerial-style constraints on public expenditure, Crown Prosecutors have become increasingly focused on issues of cost effectiveness in prosecutions.
4. Police/CPS diversion in comparison with diversion by non-police agencies
It is sometimes in the economic interests of companies to be better regulated: improved safety, and thus fewer accidents, could save money in insurance and compensation and increase employee loyalty. However, one effect of competition is that this will be true only if all companies in a particular sector have to comply equally. If one company is allowed to undercut the others by spending less on, for example, safety the others will be tempted to stop complying. This is not an argument against the ‘pyramid’ approach per se, but it does mean that approach has to both have a heavy deterrent ‘clout’, and be applied equally to all firms in any one sector. This is particularly difficult in a global economy.
However, it is hard to see what economic interests are served by applying diversionary measures in a way which humiliates social security fraudsters if at the same time tax cheats are treated with courtesy. Yet this is what happens. If the object is to humiliate claimants to deter future fraud, why not do the same to tax evaders? Ultimately, most people who commit the crimes that are enforced by police and CPS are unskilled or semi-skilled – i.e. easily replaced in the labour economy. This is not true of most people who commit the crimes that are enforced by non-police agencies (apart from the three that behave like the police).
It is striking that non-police agencies, like the police, put their own working rules before legal rules. As Hutter puts it, ‘on those occasions when the law is perceived as being discordant with popular, or individual, morality, it is morality rather than the law which takes priority.’ The difference is that whereas this works against the interests of suspects in the case of the police, it works in favour of suspects in the case of most non-police agencies. It seems, then, that the explanation for differential enforcement patterns lies more in the differences between different types of offender, and the different economic, political and cultural contexts of different offences, than in ‘objective’ differences between types of offence or agency. Not only have we seen that non-police agencies adopt police-style methods and enforcement patterns when dealing with poor offenders. But also, the police and CPS adopt the non-police approach when dealing with rich and/or corporate offenders (especially when the victims are poor). Take the most serious crime of all: homicide. Only some 1% of workplace deaths are prosecuted as manslaughter. Yet the police always investigate workplace deaths and, where they wish to, they involve the CPS too. When hundreds of people die at work every year, these are surely vulnerable victims. Yet the robust approach to evidential and public interest tests taken by the police and CPS in ‘normal’ circumstances (that is, when the offender is poor) is not taken here. Freedom (of some), it seems, is covertly traded for profit.
The Relation between the Public Prosecutor and the Minister of Justice
Absence of Minister of Justice
The first point to note is that the UK has no Ministry of Justice. The functions of such a ministry are split between:
- Home Office: responsible for police and crime generally;
- Lord Chancellor’s Department (renamed Department of Constitutional Affairs): responsible for courts and judges; and
- The Law Officers’ Department: The chief Law Officer is the Attorney General (AG), who is not a member of the Cabinet. He is technically the government’s chief lawyer, chief legal advisor and ‘superintendent’ of the CPS.
The idea that the CPS be established under the ‘superintendence’ of the AG, not his control, reflects the idea that the CPS has a quasi judicial role. Technically, the DPP is responsible to parliament, although this is a fiction. Like the police, the CPS is answerable to the courts alone, and only in respect of individual decisions regarding individual cases (unless an aspect of CPS policy were to contravene the ECHR).
Organisation of the CPS
As stated earlier, the CPS is a national organisation. The Prosecution of Offences Act 1985 still operates and governs the main CPS functions. At its head is the DPP, appointed by government. Traditionally the DPP is an eminent barrister (practising lawyer) who will have spent much or all of his career in private practice, not as a legal bureaucrat. Beneath the DPP is a London Headquarters (also based in York in the north of England) and 42 Area organisations, each headed by a Chief Crown Prosecutor with considerable autonomy. Only a few of the very most serious cases are passed from a local area to HQ, although HQ does have a police discipline function as well as numerous organisational and policy functions. Chief Crown Prosecutors are generally responsible for choosing their own staff, who are organised hierarchically in each area (different tiers of lawyers, and tiers of para-legal staff, administrators and other staff).
The 42 CPS areas (one of which is London, with nearly 20% of the business) correspond with the 42 main police areas (actually there are 43, but 2 are in London). The area structure has been altered several times since 1986, reflecting its origins as groups of prosecuting solicitors tied to the police; and also reflecting conflicting and changing views about what the CPS is for and to who or what it should be accountable. The current government ideology is for a ‘joined-up’ criminal justice system (along with ‘joined-up’ government in general); thus the ‘42 area’ policy has been applied to probation and court services as well as the police and CPS, so that there are, in effect, 42 locally-based criminal justice systems.
The direct effect on police procedures of the establishment of the CPS has been relatively small, for the police make initial decisions in the same ways as previously. Only when the case is passed to the CPS is control relinquished.
CPS prosecutors are generalists. However, this has to be qualified in several ways. First, it should be remembered that the CPS only deals with police prosecutions. Second, barristers conduct the most serious and difficult trials (see Chapter III). Third, some prosecutors have specialist training so that they have a particular expertise in difficult or sensitive areas – such as sexual offences, domestic violence, dealing with vulnerable victims, and so forth.
Prosecution policy
The basic statement of prosecution policy is the Code for Crown Prosecutors. This is a public document formulated by the DPP and revised periodically. It is ‘laid before Parliament’ thus subjecting it – but not individual prosecution decisions – to Parliamentary scrutiny in theory. Although the DPP is responsible for police prosecutions only, all the non-police agencies claim to adhere to it – we shall see, however, that the patterns of prosecution of these different agencies are actually very different.
In practice, Parliament never debates the principles or contents of the Code. Since the police make initial prosecution decisions and the CPS decides whether it agrees with these decisions, the Code – it is not surprising to observe – corresponds very closely with police prosecution policy. This is made by the Home Office, particularly through ‘Circulars’ (instructions) on diversion policy and practice. The underlying principles in both the Circulars and the Code derive from guidelines issued by the Attorney General in 1983, which themselves derive from policy formulated by the DPP in the mid-20th Century, but which was not published until 1981 by the Royal Commission on Criminal Procedure, London, 1981. Although the principles have remained the same, important policies, such as on the extent of diversion, have varied considerably. These have always been generated by political debates and passed onto the CPS through Home Office Circulars and, therefore, policies set for the police by government.
One purpose of the CPS is to ensure that whatever the prosecution policies are, the police adhere to them. The DPP, as the head of the CPS, is responsible for ensuring that his organisation carries out this task adequately. In turn the CPS is supervised by the CPS Inspectorate and the courts. Many ‘judicial review’ cases, for example, have concerned how far the CPS has, or has not, adhered to the provisions of the Code. This gives both defendants and victims the opportunity to challenge CPS and police decisions that they believe fail to respect their rights and interests. It must be doubted, however, whether this is as effective a process as a direct right of challenge would be.
There are two main prosecutions polices. They are presented in the form of ‘tests’. The first is that prosecution may take place only if there is sufficient evidence. This is defined as when a conviction is more likely than an acquittal. It thus requires prosecutors to predict outcome. It does not require them to assess guilt or innocence. If there is insufficient evidence to prosecute, it must not take place (or, if it has already begun, it must be halted) regardless of any other consideration.
The second test is that it must be in the public interest to prosecute. This is a very flexible concept. What one does or does not perceive as in the public interest will vary according to one’s political and social outlook and one’s experiences. If most judges are incapable of escaping this subjectivism, why should we expect objectivism of police officers, the DPP, or the Attorney General? Some guidance is given. The 1994 guidelines state that, if the cautioning pre-conditions are met, the police should take into account the ‘public interest’ criteria set out in the Code for Crown Prosecutors. The Crime and Disorder Act 1998 (CDA) provides similarly for the under 18s. These criteria include the nature of the offence; the likely penalty if the offender were to be convicted; the offender’s age, state of health, previous criminal history and attitude towards the offence (including offers to compensate victims, and so forth); the impact of the offence on the victim. Factors making prosecution more likely include premeditation, the involvement of a group of offenders, a discriminatory motive, or the suspect being under a court order such as bail.
In any one case many of these criteria pull in different directions. An offender may have a criminal record but commit a minor offence for which he has compensated the victim; or may commit a relatively serious offence but have no previous criminal history. The victim may favour or oppose prosecution, or simply be indifferent.
In the majority of cases where there is doubt about whether prosecution is in the ‘public interest’ the alternative to prosecution would be a warning. Also known as ‘diversion’ (that is, diversion from the courts) warnings are part of the armoury of all law enforcement agencies. This is discussed at the end of this chapter.
It is clear from this that the principle of discretion that is at the heart of policing in the UK is also fundamental to the CPS. The CPS is entitled to prosecute any case it wishes (subject to the evidential test), or not prosecute. The ‘public interest’ test can be used to justify almost any decision although entirely irrational decisions or decision clearly at variance with the Code or caution guidelines can be challenged in the courts using the ‘judicial review’ procedure.
Prosecution priorities
As prosecution decisions are discretionary, and policies are established through guidelines and the Code, it is easy for governments to establish prosecution priorities. Some are more public than others. Three recent examples of highly visible policies concern vulnerable victims, domestic violence, and street robbery. All three have become issues where government has urged police and CPS to be ‘tough’. Although government cannot force these agencies to take particular decisions or allocate resources accordingly, by making resources available for these specific issues government has been able to exert considerable influence on policy and, therefore, on decision making. The result in relation to all these three policies is higher prosecution rates and fewer non-prosecution decisions – quite simply, in these areas, prosecution is now almost automatically in the ‘public interest’. This is not to say that these policies automatically translate into police and CPS decisions – government reports complain that they frequently do not. But there is no doubt that prosecutions are higher in these areas now than 5-10 years ago, and that this is due to these specific government policies. (See, for example, HMCPSI, Street Crime report (Home Office, 2003); HMCPSI, Violence at home – A joint thematic inspection of the investigation and prosecution of cases involving domestic violence (Home Office, 2004)).
Whether or not to prosecute ‘political’ offences, such as killings by soldiers and police officers in Northern Ireland, used to be particularly controversial. The same is true of alleged offences by police officers in general. More obvious examples include offences against the Official Secrets Acts, including the leaking of classified information harmful to ministers but, arguably, not to the public. At least with allegedly biased prosecutions the issues can be aired in public. Allegedly biased decisions not to prosecute are of such low visibility that even speculation is difficult. Occasionally, an exceptional case comes to light. A senior judge who crashed her car, causing severe injuries to a passenger was deemed by the police to be in need of a ‘driver rectification scheme’. Despite this, she was not prosecuted for careless driving. The reasons are not known but the decision was taken, exceptionally, by a very high ranking police officer.
The most notable case is the recent prosecution of a government official under the Official Secrets Act for releasing information about the build-up to the Iraq war of 2003. Arguably, the government pushed CPS into prosecuting as ‘government interest’ was deemed to be the same as the ‘public interest’. But as the defendant’s defense would have led to the disclosure of documents that would have embarrassed the government even more, its interest – and thus the ‘public interest’ changed, and so the CPS dropped the case.
Powers and duties of the CPS
All cases that the police wish to prosecute have to be passed to the CPS. The CPS used to decide whether or not to continue the prosecution. Now they will decide whether or not to prosecute (CJA 2003). Because of the discretionary system discussed above, the CPS can prosecute on the charges set by the police, reduce or change those charges, or drop the case entirely (dropping a case is known, in most circumstances, as a ‘discontinuance’). It can drop the case immediately or later. However, these decisions should be based on the criteria in the Code. There are also special recent duties in relation to victims (see Chapter V – the Conclusion), and in relation to court processes and sentencing (discussed in Chapters III and IV). A good example of its exercise of powers is the recent decision to drop the prosecution of the government employee who allegedly broke the Official Secrets Act discussed above.
Note that once a case has begun the court (or perhaps only a Crown Court) can decide what shall happen. Thus, in a notorious serial killer case in the 1970s (the Yorkshire Ripper case) there was evidence to support the view that the defendant was mentally abnormal, but not sufficiently abnormal to be unfit for trial on these grounds. English law provides that defendants charged with murder may be convicted of manslaughter (a lesser form of homicide) if they are mentally abnormal. The prosecution ‘plea bargained’ with the defendant, the ‘deal’ being that if the charges were reduced from murder to manslaughter on these grounds, he would plead guilty. When the prosecutor presented the ‘deal’ to the judge, the judge refused to accept the lowering of the charges and insisted on the trial for murder proceeding. The defendant was convicted of murder.
The CPS has other miscellaneous powers. For example, the CPS can take over any private prosecution and then either continue that prosecution or drop it. Also, the prosecution has a right of appeal against the granting of bail in serious cases, and various rights of appeal against conviction (in magistrates courts only), and against successful appeals by defendants. And there are complex duties to disclose information – regardless of whether or not it will not be used in the proceedings by the prosecution – to the defense.
As part of the CPS power to drop a case on any grounds, it may also advise the police to caution (issue an official warning) when it considers this to be appropriate. But in the past it had no power to issue warnings or conditional waivers. Under the CJA 2003 both police and CPS can issue conditional warnings.
Non-police agencies
Substantial numbers of prosecutions are brought by non-police agencies. Health and Safety offences are dealt with by the Health and Safety Executive (HSE), pollution offences by the Environment Agency, tax evasion by the Inland Revenue, TV licence evasion by the Television Licensing Authority (TVLA), Social Security fraud by the Department of Social Security (DSS), and other frauds by various agencies including the Department of Trade and Industry, and the Serious Fraud Office (SFO). Local authorities are responsible for all sorts of offences including harassment and unlawful eviction of tenants. The British ‘opportunity’ principle has enabled each body to develop its own prosecution policies and patterns which are often radically different to those of the police.
Some 500 people die at work every year (by comparison, there are less than 1,000 ‘official’ homicides each year), thousands die each year from occupational diseases (estimates vary wildly) and there are some 18,000 major work-related injuries annually. The Health and Safety Executive estimates that in most of these incidents the employer was in breach of the Health and Safety at Work Act 1974. Thus, most of these incidents give rise to potential criminal, as well as civil, liability. Fraud is equally serious, in a different way. Just a few major fraud cases equal in value all the theft and burglary cases prosecuted by the police each year. The SFO has a case load of only the 60 or 70 most serious frauds at any one time, their aggregate ‘value’ being estimated, in some years, at more than £5 billion. Doubtless the same is true of tax evasion, where the overwhelming majority of traders’ accounts, for instance, understate profits.
The official policy of the HSE is: ‘Enforcing authorities must use discretion in deciding whether to initiate a prosecution. Other approaches to enforcement can often promote health and safety more effectively but, where the circumstances warrant it, prosecution without prior warning and recourse to alternative sanctions may be appropriate.’
In practice, the decision-making structure of the non-police agencies produces a propensity not to prosecute. Their prosecution decisions are controlled by the organisation, in contrast to the police, where prosecution decisions are controlled by individual officers on the ground. Moreover, since these offences usually take place in private rather than in public (drug offences and social security fraud again being exceptions) offences are not discovered by patrols or members of the public, and, in the absence of coercive detention, confessions are rare. Offences often come to light because of accidents or routine inspections, which are sometimes arranged in advance with the ‘suspect’.
This means that discovering offending without waiting for accidents to happen is difficult. The response has been to seek information from the ‘suspects’ themselves. This requires a different attitude to that of the police on the streets. The result is the development of ‘compliance’ modes of working. Rather than treating their suspects as criminals, regulatory agencies seek to maintain continuing relationships with companies to try to persuade them to comply with the law, and to avoid prosecution wherever possible. Non-police agencies and business criminals ‘bargain and bluff’ with each other. As with cautioning, this is done ‘in the shadow of the law’. The difference here, however, is that the relative bargaining powers are closer to being equal.
When agencies discover offences, they usually warn the offenders informally. Enforcement notices (warning letters) are rare; prohibition notices (stopping work until the law is complied with) are rarer still; and prosecution is the last resort. The compliance approach inevitably leads to a reluctance to prosecute. The HSE prosecutes only 10% of the very few cases it investigates. This is the mirror image of the police and CPS.
It is often said that these crimes and criminals are ‘different’ from those the police and CPS deal with. Significantly, non-police agencies are usually referred to as ‘regulatory’, and their law enforcement processes as ‘regulation’, neutral terms from which stigma and condemnation are removed. Where cause and effect lie here is difficult to say. Does a lack of social stigma lie behind the use of these terms, or do the terms contribute to the lack of stigma? Put this way, one can see that it is not a case of cause and effect at all, but rather of two causes operating on each other in a circular fashion. One result is that neither the public at large nor traditional text books treat ‘regulatory offences’ as ‘real’ crimes (mala in se). They are seen, instead, as mala prohibita not things wrong in themselves, but merely things that society requires to be better regulated. It is sometimes said that the behaviour being controlled resembles acceptable business practice and hence is not mala in se. However, this misses the point that it is business people who construct the image of what practices are to be regarded as acceptable in their world. What many men regard as acceptable, by way of rape and violence, is no longer acceptable to the rest of us and nor should it be. Letting criminals decide by what standards they should be judged tells us more about the sources of power in society than about the acceptability or harm of the behaviour in question.
The only non-police agencies ‘out of line’ are those that deal with the poor and/or street criminals. First, there is the Department of Social Security fraud inspectorate which deals with social security claimants. Second there is the Customs and Excise, which is particularly interesting as it deals with areas as diverse as drugs (classic street crime) and corporate VAT (classic suite crime). Drug offences are enforced and prosecuted by Customs and Excise in the way that the police use the law (i.e., severely), while corporate VAT fraud is enforced in the way that the Inland Revenue enforce the law (i.e., lightly). Third, there is the TVLA. This agency is owned by the Post Office, which collects TV licence fees for the BBC. It is an offence not to possess a current licence if one has a TV, and officially there is no way of negotiating one’s way out of prosecution even though the Code for Crown Prosecutors is supposed to apply. Thousands of people – virtually all from the poorest sections of society and disproportionately women – are prosecuted every year, and literally hundreds are jailed for fine default. Yet the sums of money involved are similar to those which the Inland Revenue collects, without penalty, years after they are due.
Diversion from court (settlement out of court)
Four main problems will be dealt with here: the pre-conditions and criteria for diversion, the scale of diversion, CPS diversion decisions, and police/CPS diversion in comparison with diversion by non-police agencies. Also important, but outside the scope of this paper, is the question of what should be done with (or to) offenders who are diverted (should restorative justice, for example, be usual?), and who should decide this: CPS? Police? Courts?
1. The pre-conditions and criteria for diversion
For under 18s there are two pre-conditions to be met: sufficient evidence of the offender’s guilt to give a realistic prospect of conviction; and admission of the offence by the offender. An ‘appropriate adult’ must be present if the offender is under 17. For adults there are the same pre-conditions, plus the need for the offender’s informed consent. These have been modified by recent legislation (Sect. 23 CJA 2003):
1. The first requirement is that the authorised person has evidence that the offender has committed an offence.
2. The second requirement is that a relevant prosecutor decides:
a. that there is sufficient evidence to charge the offender with the offence; and
b. that a conditional caution should be given to the offender in respect of the offence.
3. The third requirement is that the offender admits to the authorised person that he committed the offence.
4. The fourth requirement is that the authorised person explains the effect of the conditional caution to the offender and warns him that failure to comply with any of the conditions attached to the caution may result in his being prosecuted for the offence.
5. The fifth requirement is that the offender signs a document which contains:
a. details of the offence;
b. an admission by him that he committed the offence;
c. his consent to being given the conditional caution; and
d. the conditions attached to the caution.
These pre-conditions are intended to ensure that, because a caution is a statement of guilt (which can be cited in court), the offender really is guilty and would be convicted if prosecuted. They are due process safeguards, intended to inhibit the police from cautioning whenever they adjudge a suspect to be guilty but they cannot, or would rather not, collect sufficient evidence to support a prosecution.
As a mechanism for protecting innocent suspects from administrative determinations of guilt, the pre-conditions do not work well. Sometimes cautions are administered precisely because there is insufficient evidence, and sometimes in the absence of consent or an admission. Nor is consent or an admission a safeguard in reality. Some juveniles, in particular, are prepared to admit and consent to almost anything to escape from the ‘coercive jaws’ of the criminal process. Offenders are required to ‘bargain in the shadow of the law’. In one case the cautioning inspector admitted that he often offered a caution and then asked the alleged offender if he understood that this amounted to an admission of the offence, with the implicit threat that if the suspect did not agree to this, he or she would be prosecuted instead of cautioned (Metropolitan Police Comr, ex p Thompson, 1977, 1 WLR 1519). Although the Divisional Court held that cautions offered as an inducement to confess, such as happened here, are invalid, it clearly had been a common practice and is unlikely to have been eradicated as a result of this one case.
Another caution was quashed by the Divisional Court after a juvenile was incorrectly told that what he did (watch his cousin shoplift) amounted to theft. It was on this basis that he admitted his ‘guilt’ (Metropolitan Police Comr, ex p P, 1995, 160 JP 367). However, the judge in this case made it clear that the courts will not intervene except in exceptional circumstances: ‘Nothing contained in my judgment is intended to offer any sort of general encouragement to those cautioned to challenge the legality of their cautions. I accept Mr Lewis’ submission in broad terms. Police officers responsible for applying this circular must enjoy a wide margin of appreciation as to the nature of the case and whether the preconditions for a caution are satisfied. As Watkins LJ made clear in ex p L, one would only rarely expect those who have been cautioned to succeed in showing that the decision was fatally flawed by a clear breach of the guidelines.’
The caution guidelines and Code suffer many faults. For example, many of the criteria (listed earlier in this Chapter) are vague: how serious, for instance, is ‘serious’? It is a subjective matter. Secondly, they are manipulable by the police. Cases can be constructed to seem more or less serious. Finally, the cautioning criteria are non-prioritised. In other words, it is impossible to say whether a given decision is right or wrong if an offender ‘scores’ high on one criterion and low on another. The guidelines explicitly state that the victim’s consent is not essential to caution, but no guidance is provided on how far the victim’s views should outweigh other criteria. Thus countless pieces of research have found the police justifying non-prosecution of some cases by reference to the views of the victim, but at the same time prosecuting other cases where the victim did not want prosecution. Only ‘seriousness’ is prioritised, as this is a crucial criterion for deciding whether or not a repeat warning can be given to a juvenile.
2. The scale of diversion
Police warnings (often referred to as ‘cautioning’) attracted little public controversy for many years until their use became so frequent that government and police spokespeople in the early 1990s began to blame them for rising crime rates. The guidelines were then changed to reduce cautioning, and the CPS followed this policy. As the following figures show, the caution rate was at its highest in the early/mid 1990s and have fallen steadily since then in line with changed policy and guidelines. Overall, the 2002 caution rate fell by 1% (as compared to 2001). The overall caution rate of 30% was the lowest level for 10 years.
Caution rates (per cent of all found guilty or cautioned for indictable offences)
|
|
Males |
Females |
|
||||
|
14-17 |
18-20 |
21+ |
14-17 |
18-20 |
21+ |
||
|
1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 |
38 45 44 49 58 63 60 54 48* 43* 41* |
3 5 9 12 19 29 34 35 34 29 29 |
4 5 10 12 16 23 25 26 24 20 19 |
65 71 70 70 77 84 81 76 67* 63* 62* |
6 10 18 24 34 50 50 50 46 41 41 |
12 16 26 29 34 46 44 44 39 34 32 |
* 15-17 |
Source: Home Office, Criminal Statistics England and Wales 1998 (Cm 4649) (London: SO, 2000), Table 5.3. and Home Office, Criminal Statistics England and Wales 2002 (Cm 6054) (London: SO, 2003), Table 2.3.
3. CPS diversion decisions
One of the functions of the CPS is to exercise control over the ‘public interest’ dimension of prosecutions, although it cannot do anything about cases which were cautioned when they should have been prosecuted. Indeed, the police can even tie the hands of the CPS by promising that a case will be dropped. Although discontinuance is the prerogative of the CPS alone, it has been held to be an abuse of process for prosecution to be continued after a promise, even from the police, that it will be dropped (R v Croden Justice ex p Dean, 1993, QB 769). In this case the ‘deal’ was discontinuance in exchange for the suspect giving evidence for the prosecution in a murder trial. This illustrates both the structurally weak position of the CPS as compared to the police, and the way the police use prosecution and non-prosecution in the ‘public interest’ as part of broader policing strategies.
The CPS can, in principle, ensure that cautionable cases are not prosecuted by discontinuing them. The step back in the mid-late 1990s by government from its previous enthusiasm for diversion is reflected in the 1994 Code: ‘In cases of any seriousness, a prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour’ (para 6.2). But even if the CPS is right to accept government policy on the scale of diversion, it should still exercise control over police inconsistency (or abuse) in their application of the criteria and pre-conditions. Nearly one-third of discontinuances are on ‘public interest’ grounds. However, the CPS only rarely recommends that a caution be substituted. Given the propensity of the police to initiate prosecutions in cautionable cases these figures seem low. On the other hand, by the time the CPS discontinues cases it is sometimes too late to suggest a caution instead (because the matter has become ‘stale’). A realistic view of the proportion of cases discontinued by the CPS that should be cautioned by the police on public interest grounds (rather than marked for prosecution) would be somewhere between around 6% and a third. Ultimately, it remains unclear whether most cautionable cases are being correctly identified by the CPS, but is very unlikely.
Police case construction makes it often difficult and sometimes impossible to identify cautionable (and evidentially weak) cases. Factors which could point towards caution or other forms of diversion are downplayed in the file, or such facts are not brought out by the police because of failure to ask appropriate questions. Further, pro-police CPS attitudes and practices are entrenched features of an agency whose raison d’être is prosecution. As with the police, if one is concerned with the protection of the interests of suspects, the last place to seek that protection is in an agency with an adversarial relationship with those suspects which, moreover, depends for all of its information on another agency with an adversarial relationship with suspects.
How, then, is the substantial number of ‘public interest’ discontinuances to be explained? Well over half of them are because a nominal penalty is expected, the defendant is charged with other serious offences or the offence is in some other way too trivial to be prosecuted. At a time of managerial-style constraints on public expenditure, Crown Prosecutors have become increasingly focused on issues of cost effectiveness in prosecutions.
4. Police/CPS diversion in comparison with diversion by non-police agencies
It is sometimes in the economic interests of companies to be better regulated: improved safety, and thus fewer accidents, could save money in insurance and compensation and increase employee loyalty. However, one effect of competition is that this will be true only if all companies in a particular sector have to comply equally. If one company is allowed to undercut the others by spending less on, for example, safety the others will be tempted to stop complying. This is not an argument against the ‘pyramid’ approach per se, but it does mean that approach has to both have a heavy deterrent ‘clout’, and be applied equally to all firms in any one sector. This is particularly difficult in a global economy.
However, it is hard to see what economic interests are served by applying diversionary measures in a way which humiliates social security fraudsters if at the same time tax cheats are treated with courtesy. Yet this is what happens. If the object is to humiliate claimants to deter future fraud, why not do the same to tax evaders? Ultimately, most people who commit the crimes that are enforced by police and CPS are unskilled or semi-skilled – i.e. easily replaced in the labour economy. This is not true of most people who commit the crimes that are enforced by non-police agencies (apart from the three that behave like the police).
It is striking that non-police agencies, like the police, put their own working rules before legal rules. As Hutter puts it, ‘on those occasions when the law is perceived as being discordant with popular, or individual, morality, it is morality rather than the law which takes priority.’ The difference is that whereas this works against the interests of suspects in the case of the police, it works in favour of suspects in the case of most non-police agencies. It seems, then, that the explanation for differential enforcement patterns lies more in the differences between different types of offender, and the different economic, political and cultural contexts of different offences, than in ‘objective’ differences between types of offence or agency. Not only have we seen that non-police agencies adopt police-style methods and enforcement patterns when dealing with poor offenders. But also, the police and CPS adopt the non-police approach when dealing with rich and/or corporate offenders (especially when the victims are poor). Take the most serious crime of all: homicide. Only some 1% of workplace deaths are prosecuted as manslaughter. Yet the police always investigate workplace deaths and, where they wish to, they involve the CPS too. When hundreds of people die at work every year, these are surely vulnerable victims. Yet the robust approach to evidential and public interest tests taken by the police and CPS in ‘normal’ circumstances (that is, when the offender is poor) is not taken here. Freedom (of some), it seems, is covertly traded for profit.
