Q:
Examine the functions of the Crown Prosecution Service (CPS) within the justice
system. Assess how effective it is in performing these functions. (25)
[9084/11/O/N/18]
By: Muhammad Saad Masood
A:
The question requires a discussion on the role of the Crown Prosecution Service (CPS) and
how effective it has been within the justice system.
Briefly stated, the CPS is headed by the Director of Pubic Prosecutions (DPP), and below the
DPP are Chief Crown Prosecutors who each head one of the 13 areas into which the country
is divided. Each area is then sub-divided into branches, each of which is headed by a Senior
District Crown Prosecutor. In addition, there are four central Casework divisions which
handle complex prosecutions such as organized crime.
The functions of the CPS involve all aspects of prosecution: making the decision on what
offence to charge, preparing the case to go to court, prosecuting in court and dealing with
appeals after a trial. The CPS’s role starts with the decision as to what offence or offences
should be charged. This was previously done by the police, but inappropriate charges being
brought meant the case had to be discontinued. Now the police only make the decision on
what offence to charge in less serious offences and even for these offences, the police can ask
the CPS for pre-charge advice. The decision to charge in all serious cases is made by the CPS.
When making the decision on charging the Code for Crown Prosecutors must be complied
with, and this sets out the general principles to be followed when making a decision on
charging. The two main tests as set out by the Code are: the evidential test, and the public
interest test. These tests are applied by the CPS when it reviews cases in which the charge was
made by the police. The aims of the tests are to ensure that weak cases are not taken to court
and there is no prosecution in cases where it is not in the public interest. So, this is something
that the CPS has to ensure from the outset.
Under the evidential test, the CPS has to consider whether there is sufficient evidence to
provide a realistic prospect of conviction in the case. Under this, the CPS has to consider the
strength of the evidence available, and whether magistrates or a jury are more likely not to
convict. Further points to consider for the CPS are on the admissibility of such evidence and
whether or not it has been obtained by breaching the rules of PACE. In addition, the CPS will
also look into whether a witness’s evidence is credible and how strong the evidence of
identification of the defendant is.
In applying the public interest test, the CPS will consider whether it is in the public interest to
continue with the case, and that involves a variety of considerations. The code of practice sets
out a series of points that should be considered. The points are as follows: the seriousness of
the offence; the more serious the offence, the more likely that prosecution is required.
Secondly, the level of culpability of the suspect; the higher the culpability the more likelihood
of prosecution increases. Thirdly, the circumstances of the victim and harm suffered by them.
Prosecution would become more likely for all of the following reasons; a high level of
vulnerability of the victim, or if at the time of the offence, the victim was a public servant, or
if the offence was motivated by any form of discrimination. Fourthly, was the suspect a minor
when they committed the offence and thus the best interests of such a person must be
considered by the CPS. The younger the suspect, the less likely that prosecution is required.
Fifthly, the impact on the community. The greater the impact, the greater the chances of
prosecution. Sixthly, if prosecution is an appropriate response, which will consider all of the
aspects associated with it such as cost. Finally, whether the sources of information need
protection. The CPS needs to make sure that special care is taken when proceeding with a
prosecution where details need to be made public that could harm sources of information.
Once a defendant has been charged with, or summoned for an offence, the police role comes
to an end. The police must send the paper for every case to the CPS and then each case is
assigned to a team in the local branch of the CPS, and that team will be responsible for the
case throughout the prosecution process. The CPS also has to work with and support the
victims by following the Code of Practice for Victims. The code sets out services the victims
can expect to receive from the criminal justice system such as being informed of the time and
date of the hearing, as well as the outcome of such hearings. Where the victim has to give
evidence in the case, they are entitled to matters such as meeting the CPS prosecutor and ask
them questions about the court process, among other things.
Lawyers working in the CPS as Crown Prosecutors or Associate Prosecutors are especially
trained lay people working in the CPS and prosecute cases in the Magistrate’s Court. In the
Crown Court, the cases are presented by a Crown Prosecutor with the appropriate advocacy
qualification or by a solicitor or a barrister, who act as a prosecuting counsel at the Crown
Court.
Therefore, in order to summarise the functions of the CPS, it charges individuals by applying
the evidential and public interest tests, it prepares the prosecution’s case and supports the
victims where necessary, and then prosecutes the defendant in court.
There have been two main criticisms of the CPS; they discontinue too many cases and are
inefficient. As far as discontinuation is concerned, the CPS is under a duty to review cases to
see if prosecution should continue, and there have been criticisms over the number of cases
in which the CPS decides that the prosecution should be discontinued. To ascertain whether
a particular case should be discontinued, the CPS will rely on the results of the evidential and
public interest test. Over the last decade or so, the discontinuance rate has been stable at about
10%. Whether such cases deserved to be discontinued is an entire matter altogether.
Moreover, there has been criticism that the CPS is not always ready to proceed with cases at
court; something which was validated by a report published in October, 2006, which pointed
out that there was a large number of cases, both trial and pre-trial which did not proceed on
the day. The CPS, according to the report was responsible in 38% of the cases, where the case
did not proceed and charges against the defendant were dropped on the day of trial. The
Committee responsible for the report identified the financial hit taxpayers’ money took
because of these delays and gave a figure of 24 million pounds as being attributable to the
CPS.
Reports from Her Majesty’s Crown Prosecution Service Inspectorate show that the CPS
appears to be doing worse off in some areas of England, for example, showing ineffective
trials in the London district in 2014. Furthermore, they also found that there was timely
compliance with court directions in only 28% of the cases, among other things. Similarly, in
2015, reports from the said Inspectorate showed that ineffective trials could have been avoided
by prosecution actions in just over a third of cases, and also that ineffective hearings
(preliminary hearings before trials) could have been avoided by prosecution actions in nearly
half of the cases. These reports show that problems with the CPS’s handling of cases still
persist and this is something that needs to be remedied.
In conclusion, it can be said that the functions of the CPS are varied, but in light of the
criticisms being brought forward, the CPS may need some restructuring in terms of them
being inefficient in the handling of cases as well as redefining the rules on when a case should
be discontinued.