Conclusion
Chapter V
Conclusion
A set of issues equally important as the others discussed in this report is accountability to, and the role of, victim. In Britain, like most other common law and European jurisdictions, victims have only become legally and politically significant in recent years. Government policy, as stated in official documents in 2002 and 2003, claims to put victims ‘at the centre of the criminal justice system’. A further Government White Paper is due in June that is expected to precede legislation to be introduced in 2004-5.
If this is, or were to become, true, the system would be fundamentally changed. It is difficult to imagine victims being able to require the police to investigate or enforce the law (attempts to do this via court cases – judicial reviews – have failed). The government claims are largely (although not entirely) rhetoric. The police are obliged, by Home Office Circulars, to ‘take account’ of the views of victims in deciding whether to prosecute; but this has been true for 30 years. Research suggests that the police do as victims wish when this coincides with their own priorities, but not otherwise. Similarly, the Code for Crown Prosecutors requires consultation with and/or notification to, victims when charges are reduced or dropped. This has been reinforced in 2000 by new guidelines issued by the Attorney General. These guidelines are vague as to the extent of the consultation obligation. In the last few years there has been considerable investment in training CPS lawyers to communicate with victims (as if lawyers are incapable of speaking plainly!). But whether the communication is supposed to be one-way or two-way is still unclear.
However, we saw earlier that government initiatives as regards certain groups of offender/victims (domestic violence; vulnerable and intimidated witnesses) aimed at securing more prosecutions in these cases have been partially successful. Indeed, the falling conviction rate in sexual offences is almost certainly due to the fact that cases which would not have been prosecuted in the past are prosecuted now. Prosecutors are supposed to consider the interests of victims in deciding on the level of charge, whether to accept guilty pleas and whether to oppose bail. There is an unresolved tension between the expressed wishes of victims and their interests; and between the public interest in respecting victims in these ways and other ‘public interest’ factors.
What has not been seriously considered in the UK, unlike in many ‘inquisitorial’ systems, is allowing victims a direct role in prosecuting or addressing the court, or in allowing access to prosecutors’ files. In the UK the prosecutor is therefore (by implication) the representative of the victims, yet – as is obvious from this paper – the prosecutor does not ‘represent’ victims (nor the police) in the way that the defense lawyer represents the defendant. Thus victims are not merely not yet at the centre of the criminal justice system – they are hardly recognised as parties to prosecutions at all. This is gradually changing, with prosecutors having to increasingly deal directly with victims, and to take their views and interests into account, but whether it will change the role and duties of prosecutors in major ways, or whether it is largely the rhetoric that will change, cannot yet be foreseen.
This report has not solely concerned the public prosecution service (CPS), but also (briefly) private prosecutions. More important, the report has examined prosecution policies and decisions by the police and non-police agencies. These other aspects are important because the CPS is only one element of the prosecution structure in England and Wales. The discretion-based process, and the division of responsibilities between police and CPS, and between police and non-police agencies, has not been planned or set out in any one Code. This has all evolved. However, it would be a mistake to think that it is therefore random, and that it could easily be replaced by an entirely different system.
Apart from its harmony with the rest of the criminal justice system in the UK, the processes and policies set out here serve social, political and economic purposes. The substance often fails to live up to ‘human rights’ rhetoric and other rhetoric of fairness, but the form appears fair. For example, the same policies are used for police and non-police prosecutions, but they are applied differently, undermining the Rule of Law but serving (contested) social, political and economic functions. If there were one public prosecution service this would be very difficult to justify; as it is, each service operates in its own way, arguing (when, rarely, challenged) that it adapts its processes to the conditions in which it operates. Similarly, the dominant position of the police is no accident, but reflects the role of the police in pursuing governmental objectives that go far beyond specific legal decisions about specific cases. The CPS mind-set is still that of a prosecution agency rather than a criminal justice agency. Whether this will change in the light of the CPS now being given the power to charge suspects will be seen over the next few years.
Conclusion
A set of issues equally important as the others discussed in this report is accountability to, and the role of, victim. In Britain, like most other common law and European jurisdictions, victims have only become legally and politically significant in recent years. Government policy, as stated in official documents in 2002 and 2003, claims to put victims ‘at the centre of the criminal justice system’. A further Government White Paper is due in June that is expected to precede legislation to be introduced in 2004-5.
If this is, or were to become, true, the system would be fundamentally changed. It is difficult to imagine victims being able to require the police to investigate or enforce the law (attempts to do this via court cases – judicial reviews – have failed). The government claims are largely (although not entirely) rhetoric. The police are obliged, by Home Office Circulars, to ‘take account’ of the views of victims in deciding whether to prosecute; but this has been true for 30 years. Research suggests that the police do as victims wish when this coincides with their own priorities, but not otherwise. Similarly, the Code for Crown Prosecutors requires consultation with and/or notification to, victims when charges are reduced or dropped. This has been reinforced in 2000 by new guidelines issued by the Attorney General. These guidelines are vague as to the extent of the consultation obligation. In the last few years there has been considerable investment in training CPS lawyers to communicate with victims (as if lawyers are incapable of speaking plainly!). But whether the communication is supposed to be one-way or two-way is still unclear.
However, we saw earlier that government initiatives as regards certain groups of offender/victims (domestic violence; vulnerable and intimidated witnesses) aimed at securing more prosecutions in these cases have been partially successful. Indeed, the falling conviction rate in sexual offences is almost certainly due to the fact that cases which would not have been prosecuted in the past are prosecuted now. Prosecutors are supposed to consider the interests of victims in deciding on the level of charge, whether to accept guilty pleas and whether to oppose bail. There is an unresolved tension between the expressed wishes of victims and their interests; and between the public interest in respecting victims in these ways and other ‘public interest’ factors.
What has not been seriously considered in the UK, unlike in many ‘inquisitorial’ systems, is allowing victims a direct role in prosecuting or addressing the court, or in allowing access to prosecutors’ files. In the UK the prosecutor is therefore (by implication) the representative of the victims, yet – as is obvious from this paper – the prosecutor does not ‘represent’ victims (nor the police) in the way that the defense lawyer represents the defendant. Thus victims are not merely not yet at the centre of the criminal justice system – they are hardly recognised as parties to prosecutions at all. This is gradually changing, with prosecutors having to increasingly deal directly with victims, and to take their views and interests into account, but whether it will change the role and duties of prosecutors in major ways, or whether it is largely the rhetoric that will change, cannot yet be foreseen.
This report has not solely concerned the public prosecution service (CPS), but also (briefly) private prosecutions. More important, the report has examined prosecution policies and decisions by the police and non-police agencies. These other aspects are important because the CPS is only one element of the prosecution structure in England and Wales. The discretion-based process, and the division of responsibilities between police and CPS, and between police and non-police agencies, has not been planned or set out in any one Code. This has all evolved. However, it would be a mistake to think that it is therefore random, and that it could easily be replaced by an entirely different system.
Apart from its harmony with the rest of the criminal justice system in the UK, the processes and policies set out here serve social, political and economic purposes. The substance often fails to live up to ‘human rights’ rhetoric and other rhetoric of fairness, but the form appears fair. For example, the same policies are used for police and non-police prosecutions, but they are applied differently, undermining the Rule of Law but serving (contested) social, political and economic functions. If there were one public prosecution service this would be very difficult to justify; as it is, each service operates in its own way, arguing (when, rarely, challenged) that it adapts its processes to the conditions in which it operates. Similarly, the dominant position of the police is no accident, but reflects the role of the police in pursuing governmental objectives that go far beyond specific legal decisions about specific cases. The CPS mind-set is still that of a prosecution agency rather than a criminal justice agency. Whether this will change in the light of the CPS now being given the power to charge suspects will be seen over the next few years.
