The Crown Prosecution Service has this week launched a 12 week public consultation on important changes to the Code for Crown Prosecutors, which is the document that sets out the principles which prosecutors must follow when they decide whether or not to prosecute an individual. The test set out in the Code is applied in every case and it requires prosecutors to consider whether there is sufficient evidence to charge an individual with a criminal offence and whether a prosecution is needed in the public interest.

In announcing the consultation, Keir Starmer QC, Director of Public Prosecutions, said “Following the announcement of the merger between the CPS and the Revenue and Customs Prosecutions Office (RCPO) earlier this year, I have considered further what changes to the Code for Crown Prosecutors should be made in order to ensure that all prosecutors in the new public prosecution service, along with police officers, are making fair and consistent decisions”. The main changes are:

• Prosecutors will have a discretion to determine whether, where there is sufficient evidence and it is in the public interest to prosecute, a prosecution is a proportionate response to the specific offending.
• Prosecutors will have a discretion to stop a prosecution in the public interest, in exceptional circumstances, before all of the evidence is available.
• A fuller section explaining the Threshold Test.
• A fuller section explaining the use of out-of-court disposals for both adults and youths.
• A fuller explanation of how the public interest is assessed.
• Further public interest factors are identified both tending in favour and against prosecution.

According to ‘The Times’, the consultation will fuel the debate on the numbers of cases escaping prosecution in the courts, which they estimate to be half the 1.4 million offenders dealt with by the justice system each year. A Crown Prosecution Service spokesman is reported as accepting that some offenders could be let off under the guidelines. ‘The Times’ also reports that the proposals were immediately condemned by the Magistrates’ Association, which said that it was yet another instance of the blurring of the respective duties of courts and prosecutors. John Howson, deputy chairman of the Magistrates’ Association, is reported as saying that the new discretion for prosecutors seemed to be “part of the complete muddle in the way we treat offenders and over the boundaries between where the prosecutors and the courts lie”, adding that “if someone has offended, they should be brought before the courts, where we have a range of penalties from an absolute discharge to custody. The job of prosecutors is to find the evidence, not to assess the weight of it”.

The consultation period ends on 11 January 2010 and a summary of the responses received will be published. The full text of the consultation can be found at:-

http://www.cps.gov.uk/consultations/rccp2_consultation.pdf

“The public’s right to live in safety and to be protected from criminal conduct lies at the heart of the criminal justice system. The Crown Prosecution Service (CPS) and the Revenue and Customs Prosecutions Office (RCPO) protect the public by prosecuting firmly and fairly, and by doing so in an open, transparent and independent way. Our duty is to serve our communities and to do justice in every case.”

So said the Director of Public Prosecutions, Keir Starmer, QC, when last week he published his plan for taking forward the public prosecution service. He said that for too long the CPS had been part of a criminal justice system. Criminal justice should not be a system, it should be a service, and developing criminal justice from a system to a service is now a priority. He identified the key to a dynamic and responsive public prosecution service as Core Quality Standards which set out clearly what is expected. They will lay down the minimum in terms of quality and delivery that the public are entitled to expect from those who prosecute on their behalf. The standards will cover every major aspect of CPS work, from protecting the public to advising the investigator, through to defining the standards of service in respect of every aspect of the prosecutor’s role in court, and supporting victims and witnesses in dealing with complaints.

The RCPO and the CPS are to merge and it is claimed that this will provide for a more flexible organisation, better placed to deal with specialist, organised, crime. At the same time a core commitment identified is to the communities served. Prosecutors are to be community prosecutors, so that they know the types of crime that cause most local concern and are able to take the public’s views into account in their decisions and in the information they place before the courts. The DPP said that criminal justice is not delivered as effectively and efficiently as it should be. “It is high time for the electronic case file and electronic case management systems to become the main currency in the criminal justice service.” Of the 104,000 cases placed before the Crown Court, 73% result in the defendant pleading guilty without the need for a trial. Given the extent to which the Crown Court is predominantly a sentencing court, the DPP said there should be a fresh look at how best to conduct business there. “Guilty pleas need to be identified earlier, so that valuable time and resources can be concentrated on those cases which are actually going to result in a trial.”

The Attorney General has created a Strategic Board to review and improve the delivery of public prosecution, fraud and legal services for which she is responsible. An outcome of that Board’s work has been the creation of an agreed protocol that sets out how the Attorney General and the Directors of the prosecution services exercise their functions in relation to each other. It claims to confirm the independence of the prosecution services in reaching prosecution decisions – pace BAE Systems – and sets out the circumstances when the Attorney General will be consulted by the prosecuting departments in order to ensure Parliamentary accountability.

The DPP concludes that “a criminal justice service underpinned by the rule of law and respect for human rights is at the heart of modern democracy…Fair, fearless and effective; open, honest and transparent; protective, supportive and independent: these are the qualities that the public has a right to expect of its public prosecution service. We are determined to meet those expectations.”

The full text of the plan can be found at:-

www.cps.gov.uk/news/articles/
and you are invited to send any comments to GeneralFeedback@cps.gsi.gov.uk

“It is a national disgrace that in 2009 rape almost always goes unpunished” writes Libby Brooks in the ‘Guardian’. “This is about systemic, institutionalised negligence. If you are raped, the likelihood is that the police won’t help you, and the CPS won’t help you. If you unusually achieve a trial, the prosecution won’t help you and the judge won’t help you”.

The statistics of rape are difficult to pin down. The British Crime Survey in 2000 calculated that 754,000 women had been raped at least once, 61,000 in the previous year. The group Campaign to End Rape estimated that in 2001 there were 190,000 serious sex assaults and 47,000 rape or attempted rape victims. As all figures are considered to be underestimated the incidence is staggering. The great majority of victims never report their attack, and of those that do only 25% will make it to court because the obstacles for a complainant remain enormous. In 2003/04 there were 12,354 recorded offences of rape. The persistently low conviction rate is just over 6%.

So embarrassing has been the failure to deal effectively with rape cases that the Home Office this week announced a series of new measures. An additional £1.8m is to be provided to set up more sexual assault referral centres, which “play a vital role in providing care and support for victims, while also giving investigators the best chance to build a successful case. They provide victims with immediate medical help, counselling, forensic examinations and the opportunity to give evidence anonymously, all in one location”. There will be training for police officers on what to do when a rape is first reported. Victims will meet with a specially trained officer within an hour of reporting the crime. There will be additional help for police and prosecutors investigating rape cases, to ensure that crimes are solved and attackers are punished. Targets will be set for rape investigations, and a Rape Performance Group set up, charged with quarterly monitoring and assessment of police and the Crown Prosecution Service’s handling of rape cases.

Introducing the new initiative, Home Office Minister Vernon Coaker called sexual assault cases “uniquely difficult crimes to investigate”. In a clearly coordinated move the CPS last month published a revised ‘Policy for Prosecuting Cases of Rape’ detailing all the steps (and difficulties) of such cases. It concludes with the not exactly resounding commitment “to playing our part in improving the way that rape cases are dealt with in the criminal justice system. We want victims to have confidence in the way in which we review and progress cases”. But campaigners are not impressed. According to Libby Brooks, Britain has some of the best sex crimes legislation in Europe, but a police service that won’t enforce it, a judiciary that refuses to apply it and a government that gives it insufficient priority.