The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
To understand this it is necessary to grasp the British system of solicitors and barristers. 90% of practising lawyers are solicitors. Often described as ‘general practice’ lawyers, many are actually highly specialised. A solicitor specialising in criminal law may work may have defense and prosecution work at the same time, but many specialise in one or the other. Solicitors work in law firms that vary in size from one lawyer to huge multi-site partnerships with hundreds of lawyers. They may also be employed by other agencies (e.g. by police forces and the CPS). Traditionally, solicitors have been allowed to appear only in lower courts, and generally had little expertise in conducting full trials (most criminal cases in England and Wales are short hearings concluded with guilty pleas). This is increasingly less true now, and solicitors can appear in the higher courts if they have an appropriate qualification.
Barristers are often described as specialists and primarily as litigation lawyers, although – like solicitors – they actually vary considerably. If they are employed (e.g. by the CPS) they lose certain rights, so most are self-employed, but share services and administration with other barristers by being grouped into ‘Chambers’. Barristers could not, until recently, be hired by a litigant – all their work had to be passed to them by a solicitor who ‘instructed’ them. This remains largely true even today. Until solicitors and employed barristers won the right to appear in higher courts (over the last ten years or so) all Crown Court prosecutions had to be conducted by self-employed barristers. They were (and still largely are) instructed by the CPS – and, before that, by police-employed/instructed solicitors or solicitors employed/instructed by private prosecutors or other prosecution agencies. Barristers rarely specialise in defense or prosecution work, and most will speak for each side in a roughly equal number of cases over a given period. However, the CPS now employs a number of barristers who do have the right to prosecute in higher courts. Also, a small highly paid group of barristers known as ‘Treasury Counsel’ spend all or most of their time prosecuting complex or high-profile cases for the CPS and other government agencies.
The CPS also makes considerable use of ‘agents’. These are solicitors and barristers in private practice hired on a day-by-day basis to conduct cases in the lower courts to fill gaps due to staff shortages. These lawyers are ‘instructed’ in the way that in England and Wales clients ‘instruct’ lawyers in all areas of law. In other words, these agents do not have the discretion to make decisions about cases that CPS lawyers have.
The section on the powers and duties of prosecutors in Chapter II discussed most aspects of the role of prosecutors in court and in relation to sanctions. These matters are therefore summarised briefly here.
1. Public prosecutors are dominus litis from the point at which they take charge of cases until their conclusion excepting the (usually theoretical only) control the judge has
a. if it is a Crown Court case (less than 10% of prosecutions); and
b. the case is already within the jurisdiction of that court, rather than still at the earlier magistrates court stage.
2. ‘Agents’ have limited discretion: important decisions – e.g. dropping a case – can only be taken by an agent by referring back to the CPS that instructed him.
3. Prosecutors can charge suspects with less serious offences, despite the existence of sufficient evidence for more serious charges, or even drop the case entirely. This can be done at the start of the case or later – including during court proceedings – i.e. a serious charge can be reduced to a less serious charge in the course of the proceedings. This may be done for a variety of ‘public interest’ reasons, often to keep the case in the magistrate courts and/or to secure a guilty plea (plea bargaining). Note that although in recent years an increasing obligation has been given to the CPS to inform or even consult with victims over these decisions, victims have no official locus standi here (but see Chapter V).
4. In the early stages of the case, when bail or pre-trial custody has to be determined, the prosecutor presents arguments for or against bail to the court. Although the decision whether or not to oppose bail is for the prosecutor, this decision is based solely on information provided by the police.
5. Cross examination is normal in all trials. However, most cases are disposed of by guilty plea, so trials are uncommon. In a contested trial the presentation of the case by the prosecution comes first: the prosecutor examines his witnesses, then they may be cross-examined by the defendant or his lawyer. Then is the presentation of the defense (if the defense wishes): the defendant or his lawyer examines his own witnesses, and the prosecutor cross-examines those witnesses.
6. Prosecutors make brief closing speeches following trials.
The Role of the Public Prosecutor in Court
To understand this it is necessary to grasp the British system of solicitors and barristers. 90% of practising lawyers are solicitors. Often described as ‘general practice’ lawyers, many are actually highly specialised. A solicitor specialising in criminal law may work may have defense and prosecution work at the same time, but many specialise in one or the other. Solicitors work in law firms that vary in size from one lawyer to huge multi-site partnerships with hundreds of lawyers. They may also be employed by other agencies (e.g. by police forces and the CPS). Traditionally, solicitors have been allowed to appear only in lower courts, and generally had little expertise in conducting full trials (most criminal cases in England and Wales are short hearings concluded with guilty pleas). This is increasingly less true now, and solicitors can appear in the higher courts if they have an appropriate qualification.
Barristers are often described as specialists and primarily as litigation lawyers, although – like solicitors – they actually vary considerably. If they are employed (e.g. by the CPS) they lose certain rights, so most are self-employed, but share services and administration with other barristers by being grouped into ‘Chambers’. Barristers could not, until recently, be hired by a litigant – all their work had to be passed to them by a solicitor who ‘instructed’ them. This remains largely true even today. Until solicitors and employed barristers won the right to appear in higher courts (over the last ten years or so) all Crown Court prosecutions had to be conducted by self-employed barristers. They were (and still largely are) instructed by the CPS – and, before that, by police-employed/instructed solicitors or solicitors employed/instructed by private prosecutors or other prosecution agencies. Barristers rarely specialise in defense or prosecution work, and most will speak for each side in a roughly equal number of cases over a given period. However, the CPS now employs a number of barristers who do have the right to prosecute in higher courts. Also, a small highly paid group of barristers known as ‘Treasury Counsel’ spend all or most of their time prosecuting complex or high-profile cases for the CPS and other government agencies.
The CPS also makes considerable use of ‘agents’. These are solicitors and barristers in private practice hired on a day-by-day basis to conduct cases in the lower courts to fill gaps due to staff shortages. These lawyers are ‘instructed’ in the way that in England and Wales clients ‘instruct’ lawyers in all areas of law. In other words, these agents do not have the discretion to make decisions about cases that CPS lawyers have.
The section on the powers and duties of prosecutors in Chapter II discussed most aspects of the role of prosecutors in court and in relation to sanctions. These matters are therefore summarised briefly here.
1. Public prosecutors are dominus litis from the point at which they take charge of cases until their conclusion excepting the (usually theoretical only) control the judge has
a. if it is a Crown Court case (less than 10% of prosecutions); and
b. the case is already within the jurisdiction of that court, rather than still at the earlier magistrates court stage.
2. ‘Agents’ have limited discretion: important decisions – e.g. dropping a case – can only be taken by an agent by referring back to the CPS that instructed him.
3. Prosecutors can charge suspects with less serious offences, despite the existence of sufficient evidence for more serious charges, or even drop the case entirely. This can be done at the start of the case or later – including during court proceedings – i.e. a serious charge can be reduced to a less serious charge in the course of the proceedings. This may be done for a variety of ‘public interest’ reasons, often to keep the case in the magistrate courts and/or to secure a guilty plea (plea bargaining). Note that although in recent years an increasing obligation has been given to the CPS to inform or even consult with victims over these decisions, victims have no official locus standi here (but see Chapter V).
4. In the early stages of the case, when bail or pre-trial custody has to be determined, the prosecutor presents arguments for or against bail to the court. Although the decision whether or not to oppose bail is for the prosecutor, this decision is based solely on information provided by the police.
5. Cross examination is normal in all trials. However, most cases are disposed of by guilty plea, so trials are uncommon. In a contested trial the presentation of the case by the prosecution comes first: the prosecutor examines his witnesses, then they may be cross-examined by the defendant or his lawyer. Then is the presentation of the defense (if the defense wishes): the defendant or his lawyer examines his own witnesses, and the prosecutor cross-examines those witnesses.
6. Prosecutors make brief closing speeches following trials.
