the Crown Prosecution Service (CPS)

This writeup applies to English law

When was the CPS created?

The CPS was established by the Prosecutions of Offences Act 1985 and began operating in 1986. It is an independent (theoretically) agency which reviews and conducts prosecutions.

Who prosecuted before the CPS was created?

The police used to conduct prosecutions but they were not really trained to do this. There was criticism that those who were responsible for investigating crime also prosecuted cases. This lead to the Phillips Commission being set up to consider what was the best system. They decided that "the prosecution of offences should be undertaken by different personnel to those who investigate crime". Also that decisions to prosecute were inconsistent across the country and there should be a uniform approach - the same criteria should be used in Newcastle as those in Lands End. Their report led to the Prosecution of Offences Act 1985 being passed.

Organisation of the CPS after the Glidewell Report 1998

Lord Chancellor
Attorney General
Director of Public Prosecutions
Chief Crown Prosecutors
Branch Crown Prosecutors
Support Staff

The Lord Chancellor and the Attorney General are both political appointees (they change when a new government is elected). The Director of Public Prosecutions is effectively the manager of the system. There are 42 Chief Crown Prosecutors each in charge of their own area of the country. These areas are split into several branches with their own teams of lawyers.

Initial teething problems of the CPS

Serious staff problems due to:

Frankly, the police weren't too pleased that they were told they were not good enough to handle prosecutions and stopped talking with the CPS.

Functions of the CPS

  • Giving advice to the police on whether to charge the suspect initially
  • Applying an evidential test to all cases passed to them by the police and wether it is in the interests of justice to do so - this avoids weak cases being brought to court
  • Conducting the prosecution of cases in the Magistrates Court
  • Conducting cases in the Crown Court - from April 2000, Crown Prosecutors who have advocacy certificates can conduct the case themselves in the Crown Court rather than instructing an independant barrister

Once a defendant is charged the police role is finished. The CPS assigns a case to a team of Crown Prosecutors in the local branch of the CPS and that team is responsible for the case throughout.

Discontinuance of cases - a problem?

Each year the CPS discontinue over 150,000 cases. In 1992 it was over 190,000. As a result in 1994 the Director of Public Prosecutions issued a revised Code of Practice which outlined when a prosecution should go ahead - this involved 2 tests.

Evidence test

The CPS should ask themselves:

Public interest test (see Appendix A below)

This involves wide ranging considerations and is more controversial. The Code of Practice suggests factors for and against prosecution but the factors that will apply depend on the facts of every case.

Effect of the revised Code of Practice

The number of cases discontinued has decreased. But, perhaps the police are making better, initial, decisions on whether to charge or not and so are not charging where there is doubt about the evidence.

In serious crimes where the CPS discontinued cases victims have brought private prosecutions and are sometimes successful. The CPS is also criticised for reducing a charge to a less serious crime so the defendant will pleasd guilty and a conviction is assured. Unfortunately, the sentence will also be reduced which can leave the victim feeling that justice has not been done.

Sometimes when the CPS refuse to prosecute the victim sues the suspect in a civil court where the standard of proof is not as high as in criminal cases (like the case of OJ Simpson in America). It will not result in a custodial sentence but a suspect will be found responsible in law for the criminal conduct and most likely will have to pay damages to the victim.

The Glidewell Report 1998

Sir Iain Glidewell was asked to conduct an inquiry into the Service. One of the reasons being the large number of judge ordered acquittals as a result of something being wrong with the preparation of the case.

The organisation of the CPS was criticised as being too bureaucratic and over centralised. As a result a reorganisation took place as outlined in the diagram above.

Narey Report

This was into the delay in the criminal justice system. It suggested that CPS staff should work in police stations to prevent delay in cases being passed to the CPS. It was impractical to have a CPS lawyer in every police station and so they were assigned to criminal justice units/administrative support units. Pilot schemes were successful - they decreased delay and created better working practices between the police and the CPS. Fewer cases were discontinued (i.e. 7% in the pilot, 12% nationally). Mainly this reduction was due to CPS staff being able to advise police at an early stage in the case.

Improving the quality of service to witnesses

The CPS have worked with the police and other agencies on a common policy towards witnesses which includes:

  • Pre-trial familiarisation visits for vulnerable prosecution witnesses
  • Aiming to pay witnesses' expenses within 5-10 working days of receiving a completed complaint form
  • Drawing the courts attention to any concerns witnesses may have about the possibility of a defendant being granted bail
  • Witnesses not usually being required to disclose their addresses in open court

Appendix A: Public interest

Some common public interest factors in the favour of prosecution

  • A conviction is likely to result in a significant sentence
  • A weapon was used during the commission of the offence
  • The offence was committed against a person serving the public
  • The defendant was in a position of authority or trust
  • The evidence shows the defendant was a ringleader or organiser of the offence
  • There is evidence that the offence was pre-meditated
  • There is evidence that the offence was carried out by a group
  • The victim of the offence was vulnerable
  • The offence was motivated by any form of discrimination against the victim's ethnic or national origin, sex, religious beliefs, political views or sexual preference
  • There is a marked difference between the actual or mental ages of the defendant and the victim
  • The defendant's previous convictions or cautions are relevant to the present offence
  • The defendant is alleged to have committed the offence whilst under an order of the court
  • There are grounds for believing that the offence is likely to be continued or repeated
  • The offence, although not serious itself, is widespread in the area where it was committed

Some common public interest factors against prosecution

  • The court is likely to impose a very small or nominal penalty
  • The offence was committed as a result of a genuine mistak or misunderstanding
  • The loss or harm can be described as minor and was the result of a single incident
  • A prosecution is likely to have a bad effect on the victim's physical or mental health (bearing in mind the seriousness of the offence)
  • The defendant is elderly or is, or was at the time of the offence, suffering from significant mental or physical ill health
  • The defendant has put right the loss or harm that was caused
  • Details may be made public that could harm sources of information, international relations or national security

gkAndy adds: The Scottish equivalent to the CPS is the Proculator Fiscal

Sources: My knowledge as a law student and "The code for Crown Prosecutors"

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