The Crown Prosecution Service.
History of The Crown Prosecution Service.
Up until just after the end of the first quarter of the 19th century if anyone wanted to prosecute a criminal they either had to do it on their own or pay lawyers.
From 1829, with the advent of the various police forces, those forces undertook criminal prosecutions.
In the early 1960s prosecutions were moved into separate departments but still within the police force. In 1985, this was moved completely away from the police and the Crown Prosecution Service was set up as a direct result of the Prosecution of Offences Act 1985. The CPS became operational the following year.
There is a similar organisation in Scotland called the Crown Office and in Northern Ireland, the Public Prosecution Service.
The overall head of the Crown Prosecution Service is the Director of Public Prosecutions who reports to the Attorney General in England and Wales.
The role of the CPS
The police will carry out investigations and gather evidence and decide whether to charge someone who they suspect has committed a minor offence. More serious offences have, since 2012 been charged by the Crown Prosecution Service. The police cannot charge more serious offences such as murder and rape without authorisation from the Crown Prosecutor.
Once the police have finished their investigations or charging, the matter will then be passed over to the Crown Prosecution Service who will decide whether there is a reasonable prospect of securing a conviction in court. The Crown Prosecution Service must decide whether there is sufficient evidence for a realistic prospect of conviction, and whether a prosecution is required in the public interest. The latter is not relevant if there is not sufficient interest because clearly, it is not in the public interest to prosecute something where there is not going to be a conviction secured quite simply because there is not enough evidence.
There are three types of offence in England & Wales:
1. Triable either way (Magistrates or Crown Court)
2. Summary (Magistrates only)
3.indictment only (Crown Court only. The CPS prosecute cases in both Magistrates and Crown Court.
They have both solicitors with rights of audience and barristers which bring prosecutions in both courts.
Regulation and Supervision
There is a separation of powers between the Crown Prosecution Service and the Government/parliament and government ministers have no say in whether a matter is prosecuted or not, except in cases which involve the Official Secrets Act which does require the Attorney General’s permission to proceed.
The Crown Prosecution Service does have a regulator in the form of the HM Crown Prosecution Service Inspectorate.
Prior to being charged
The Crown Prosecution Service will advise any investigation agency shortfalls in available evidence and whether the necessary legal requirements of the offence are all present. They have no power however to carry out investigations or to take any direct action.
Decisions about charging
Serious offences are charged by the Crown Prosecution Service and less serious offences are charged by the police force. If the Crown Prosecution Service decides there is not enough evidence to prosecute or it’s not in the public interest, it can suggest there is either a formal caution or reprimand or market for further Action.
In exceptional circumstances, the CPS will decide to charge if it expects that further evidence will subsequently become available although that evidence does not subsequently transpire, it could well drop the case.
Proceedings in court.
CPS will have conduct of the case including doing all the necessary preparation and disclosing any evidential material to the defence. It will then present the case in court all the way from the first hearing through conviction and sentencing and to any eventual appeal.
The CPS will draw the court’s attention to any aggravating or mitigating factors in the case, any statement from witnesses, statutory provisions and also the sentencing guidelines to assist the court in procuring the appropriate sentence.
If a defendant decides to plead guilty, as they will very often do to a lesser offence, it will decide whether to accept the guilty plea to the lesser offence if it believes that it’s still possible to pass a sentence appropriate to the original prosecuted (but not admitted) offence.
If the matter does go to appeal, it will decide whether to oppose the appeal.
The CPS will also bring extradition proceedings to court which had been brought by other jurisdictions who are wanting the return of an alien or national such as for them to face proceedings in that other jurisdiction.
The Complainants role.
Witnesses complainants and victims will be issued with a summons to attend court to give evidence. If they fail to turn up and answer the summons, they are in contempt of court liable to be arrested.
From time to time, someone will make a complaint to the police decide at a later stage, that they no longer want to pursue the complaint. It is particular common with instances of domestic violence if there has been a reconciliation. People will often refer to wanting to “drop the charges”.
However in cases like this, it is not for the complainant to drop the charges as once the complainant or alleged victim has referred the matter to the police and the police have decided to refer it to the CPS, the whole matter is on a legal rollercoaster which is very difficult for a complainant to get off. For those reasons, any alleged victim or complainant would be well advised to make sure they are intent on the alleged perpetrator being prosecuted to the maximum extent permissible by law before they make a complaint.
If they subsequently change their mind and say that either they exaggerated or fabricated the facts, they will usually be prosecuted for wasting police time.
A Victim’s Right to Review.
On many occasions, the CPS will make a decision not to proceed with the prosecution and this can often be very upsetting to a complainant or a victim. The CPS therefore have launched a scheme called the Victims Right to Review Scheme which allows a victim to ask for a review of the CPS decision not to bring charges to court or the decision to terminate proceedings.
Unfortunately, this scheme only applies if the decision was made after 5 June 2013.
Prior to the scheme, it was necessary to seek Judicial Review of the decision not to proceed. Judicial Review is a process whereby government departments and emanations of government departments are asked to review the way in which a decision was made. A successful application for judicial review did not necessarily change the decision but the government department (the CPS in this case) would need to look at their decision and decide whether it was correct or not. Sometimes they would change the decision to drop the proceedings and other times they would not. Nonetheless, it was quite traumatic for victims and not at all cheap which is why the CPS introduced the Victims Right to Review.
Anyone who has made an allegation to the police or had an allegation made by a third party to the police on their behalf is entitled to apply for Review.
This includes not only the person making the allegation, but also relatives or parents of deceased victims in homicide cases, parents if the alleged victim is under age 18, police officers who are victims of crime (it does happen) and also a family spokesperson.
The CPS have defined a victim as “A person who suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by criminal conduct”.
The decisions which evict him or entitled party can seek to review our:
- the decision not to charge
- the decision to discontinue or withdraw the proceedings
- a decision to simply hold the matter in abeyance, called for the proceedings to “lie on file”.
There are certain circumstances where cases do not fall in the scope of the review scheme which include, as mentioned earlier, any decision made prior to 5 June 2013 but also:
- cases where the police decided not to continue their investigation (as opposed to CPS)
- cases were charges had been brought but only in respect of some and not all the allegations or only against some but not all of the possible perpetrators.
- cases where one particular charge has been dropped another charge is continuing
- cases where an alternative way of disposal has been used such as a caution or penalty notice were disorder where expensive court proceedings may not be in the best interest of using public funds.
- Cases where the person asking for the review asked for the proceedings to be stopped.
If a complainant or victim wishes to have the decision reviewed, there is no standard form and it’s necessary to contact the CPS Office where the decision was made. It is better put in writing. Ideally, the request should be submitted within 5 working days from anyone being told of the decision not to proceed. The CPS will however, in certain circumstances, consider requests for a period of up to 3 months after the decision.
Full details of the CPS Right to Review are contained on the CPS website http://www.cps.gov.uk/victims_witnesses/victims_right_to_review/index.html
Before getting to Court.
Anyone who is thinking of reporting a matter to the police with a view to having a person prosecuted has to be sure that they intend to go all the way with the procedure. It is not a case of the alleged victim or complainant “dropping the case”. It is out of their hands once the matter has been reported to the police and the police have passed it over the prosecution.
It is extremely common, particularly with domestic incidents where a partner makes a complaint to the police (often domestic violence) and then the following day decides that they have overreacted or that because there is a likelihood their partner is going to be prosecuted, they no longer want to proceed.
Whilst that might have been an option many years ago, the situation now is that after someone has made a complaint, the whole matter is outside their control and the complaint in the prosecution process is a rollercoaster which it is virtually impossible to stop or get off.
If someone, having made a complaint or an allegation decides they want to withdraw their complaint, they can face prosecution themselves for wasting police time.
If a person is summoned as a witness and they fail to appear in court, that is contempt of court which is itself a criminal offence and the person making the complaint with a view to a perpetrator getting prosecuted, can themselves end up being prosecuted. It is absolutely essential therefore that if anyone is called as a witness (victims are witnesses) that they do attend court.
The majority of cases and petty cases are heard in the Magistrates court. More serious cases are heard in the Crown Court including those where the Magistrates do not think that their power of sentencing is strong enough in comparison to the offence. They will often refer matters with complicated evidence also to the Crown Court. The maximum sentence the magistrates can give is 6 months imprisonment although they would rarely do so and in cases where they are considering that, they would normally refer it to the Crown Court.
In England & Wales there are three categories of offence: Summary only, either way, or indictable only.
Regardless of which type of offence, or matters start in the Magistrates court. Usually, for a serious offence such as murder which is going to be triable only on indictment, the Magistrates court hearing would last minutes. In such cases it is a mere formality although any application for bail would also be heard by the Magistrates..
Summary only are only dealt with in the Magistrates court. A list of Summary only offences would be too long for this page but includes most driving offences, common assault (no injury) and many public order offences.
Summary only offences must be dealt with in the Magistrates court within 6 months.
Either way offences can be tried either in the Magistrates or the Crown Court and the decision whether and either way case is heard in the Magistrates or Crown Court will normally be made by the CPS depending on the severity of the case although any one accused can also choose which court to have the matter heard in.
A full list of either way offences is available to view in the Magistrates Court Act 1980 http://www.legislation.gov.uk/ukpga/1980/43/schedule/1
Indictable only offences are generally the most serious offences which would lead to a lengthy term of imprisonment potentially.
In Court. Worried?
It’s not necessary to know anything about court procedure if anyone is being summoned as a witness. All any witness needs to do is follow directions.
If someone is under aged 18 or feels vulnerable for any reason, then the CPS can take Special Measures whereby they will normally suggest that a witness gives evidence either from behind a screen or through a video link. They can also record video evidence which would then be played to the court. It is also possible to give evidence in Private where there are no members of the public from the public gallery in evidence.
More information on all of the above is available from the CPS website.
About the author:
This article was written by a member of the Expert Answers legal advice team. Expert Answers provides online legal advice on all aspects of UK Law to users in the United Kingdom.
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