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Published: Fri, 02 Feb 2018
The Crown Prosecution Service describes its role as being “to prosecute cases firmly, fairly and effectively… to what extent does it fulfill its role?
The Crown Prosecution Service (CPS) was recommended in the Royal Commission on Criminal Procedure’s Report published in 1981, and was created by virtue of section 1 of the Prosecution of Offences Act 1985. The role of the CPS is to objectively assess police investigations and to prosecute cases satisfying the Code for Crown Prosecutors, first published in 1986, second edition in 1992, and third in 1994 for lay members of the public, revised in 2000 1.
Prosecution procedure involves a set of papers being received from the police and allocated to a caseworker in the Principal Crown Prosecutor’s team 2. The caseworker makes an overall assessment by considering the two tests stated in the Code for Crown Prosecutors (CCP), the evidential test, sufficient evidence to provide a realistic prospect of the defendant’s conviction on the charge, an objective test of whether the jury or magistrate is more likely than not to convict the defendant, and reliability and admissibility of the evidence.
The public interest test, in which factors for and against prosecution must be balanced fairly, factors for include, likelihood of a significant sentence, use or threat of violence, vulnerability and fear of the victim, and factors against include a meagre penalty, effect on prosecution upon health of defendant, elderly defendants, a sentence already having been imposed and no further sentence is likely to be added.
Section 23 of the Prosecution of Offences Act 1985 allowed the CPS to discontinue cases with no realistic prospect of conviction. Sir Glidewell found a discontinuance rate of 12%, which varied according to the type of offence, curiously, the highest discontinuance rates for offences against the person and criminal damage. This may have been as a result of witnesses withdrawing evidence, a particular problem in the realm of domestic violence. The discontinuance rate rose throughout the 1990s and in 1993 193,000 cases were discontinued, 3 reducing the total number of cases getting through to court, though this could be argued either as potentially weak cases being eliminated via the evidential sufficiency criteria or a potentially weakening of the criminal justice system.. In 2000, the rate of discontinuance before cases went to court was approximately 13% in 2000/2001 4.
1 “A Practical Approach to Criminal Procedure (10th edition): John Sprack (Oxford), pp62-63
2 “The Handbook of Criminal Justice Process: M. McConville & G. Wilson (Oxford) pp9-10
3 Criminal Justice: An Introduction to the Criminal Justice System in England & Wales (3rd edition): M. Davies, H. Croall, J. Tyrer (Pearson Longman) p195
4 CPS Annual Report 2000/2001 p26
The data from the CPS Annual Report 2002/2003 showed that from 1.8 million magistrates’ court cases dealt with by the CPS, 12.6% were discontinued 5.
Discontinuance has been based upon public interest grounds as well as the evidential sufficiency criteria. From the CPS Annual Report of 1993/1994 (para 3.3), 31% of 11,000 cases discontinued in November 1993 were discontinued through application of the public interest criteria and 43% from the evidential sufficiency criteria, firstly for insufficient evidence; 11% relating to the defendant’s identity, 13% for a missing legal element, and 19% a large legal element missing; and for inability to proceed with the prosecution; 13% for a missing witness; 2% for offences already taken into account and 2% the case not being ready and adjournments having been refused 6.
For public interest grounds, 9% related to convictions or sentences for other matters, 6% to an incurrence of a nominal penalty, 4% were too elderly, 3% to the complainants’ attitude, 2% the defendant’s (old) age, 1% mental illness of the defendant and 6% for other reasons.
Discontinuance of cases on the ground of public interest could be seen as police failures or CPS successes 7. The CPS disproportionately discontinue ethnic minority cases 8, and thereby counteracts some of the race discrimination that the police exercise in charging and bringing cases, but the CPS is in a structurally weaker position because it is wholly dependent upon evidence provided by the police 9.
Effectiveness of the CPS as a prosecutor can be measured by assessing whether the CPS is inclined to take on evidentially weak cases, by means of looking at the acquittal rate, or refuses to pursue cases that are evidentially strong. The acquittal rate of the jury after trial rose from 42% in 1993 to 43% in 2001 10, not a significant rise. The CPS is supposed to only prosecute cases that have at least 51% chance of success and drop weaker cases.
However, the evidential sufficiency criteria cannot ensure the CPS can predict the likely outcome of a case. It has been found that the CPS rarely drop evidentially weak cases and when this occurred it was usually because of police working rules and after several court appearances 11. Also if the police want the prosecution to continue, the CPS usually does not drop the case 12.
5 M. Davies et al, ibid, p196
6 ibid, p197
7 A.Ashworth (1994a) “The Criminal Process” Oxford (Clarendon Press)
8 Mhlanga 
9 “The Oxford Book of Criminology (3rd edition: M. Maguire, R. Morgan & R. Reiner (Oxford) p1057
10 Criminal Statistics 1997, 2001, paras 6.32 & 6.34: Cm 5696
11 M. Maguire et al, ibid, p1059
12 Gelsthorpe & Giller 
A further monitor, leading on from above, are judge-directed acquittals in the Crown Court, 13. Ordered acquittals are from a lack of prosecution evidence, and directed acquittals are when a judge rules that the prosecution has not established a case. Out of a sample of 100 non-jury acquittals, it was found that three-quarters of directed acquittals were unforeseeable by the CPS, but that 27% were clearly foreseeable with regard to evidential criteria 14.
An increase in the proportion of ordered acquittals to directed acquittals could reflect the CPS’s increasing ability to detect weak cases, though this was reflected in the steady rise in the number of non-jury acquittals from 43% in 1978 to 63% in 2000 15. HM CPS Inspectors also assessed the CPS’s performance based upon a sample of cases, and in 2000, it was found that 34% of adverse outcomes were foreseeable, and 19% should have received some remedial action. From the Block study to this report, there has not been a significant improvement.
However, in examining the statistics from 1978 to 2000, 16 there were 24% of directed acquittals in the Crown Court 1978 in comparison to 15% in 2000, and on a plea of not guilty on all counts, there were 2,549 directed acquittals (14%), on a plea of not guilty to some counts, 410 directed acquittals, or 18%.
Regarding overall effectiveness, the CPS Annual Report 2003-2004 states that there has been a reduction in the proportion of ineffective trials in the Crown Court from 24% to 17.8%, for the quarter ending April 2004, an improvement of 6.2%, and for the magistrates’ courts, a reduction from 31% to 27.1% for the quarter ending April 2004, an improvement of 3.9% 17.
Examining the conviction rate, Sir Glidewell noted that the statistics provided by the CPS showed an increase in the conviction rate from 1995 to 1996, which contradicted those provided by the Court Service. From the CPS Annual Report 2002/2003 18, out of 80,000 Crown Court cases dealt with, 72,000 were convicted and 62% who pleaded not guilty were convicted. Although the number of reported offences to the police is relatively stable, the rate of dealing with reported crimes has fallen, due to the pro-cautioning policy from the mid-80s onwards. It is therefore difficult to monitor the CPS’s contribution to the trend of the falling conviction rate 19.
13 “Ordered and Directed Acquittals in the Crown Court: B. Block, C. Corbett and J. Peay  Crim LR 95 p100
14 B Block et al, p12
15 Steve Uglow, ibid, p202/203
16 ibid, p202
18 M. Davies et al, ibid p195
19 “The Criminal Process: An Evaluative Study (2nd edition): Andrew Ashworth (Oxford) p189
Looking at fairness, Sir Glidewell mentioned the downgrading of charges by either reducing the charge to a lower level or accepting a plea to a lesser offence, and noted that although on the whole, this was not done inappropriately, there were cases where this occurred. The Charging Standards relating to offences formed in the 1990s via a team of CPS lawyers and police working together have arguably caused the police to set charges at lower levels in some instances 20, but also modes of trial in trying the case at Crown Court or magistrates court affect this.
Delay is an obstacle to effectiveness, and Sir Glidewell mentioned the complaints from magistrates and judges about the delay and inefficiency in the preparation of cases by the CPS, though he acknowledged that court listings may contribute to this problem. Delay is mainly caused by too many cases and overwork in the CPS, though at Crown Court, waiting times between committal and trial are on average, for defendants pleading guilty, 10.8 weeks in 2000, and for defendants pleading not guilty, 19.6 weeks, though they vary according to the offence committed and from court to court 21. In magistrates’ court on average there is a waiting time of 108 days to process an indictable case from offence to disposal, which is considerably shorter than prior to CPS creation in 1986, and was due to less delay between preparation and first listing.
Effectiveness of the CPS is hindered by its relationship with the police, and the reliance of the CPS on the police to provide the initial information, and it is not clear at what point the CPS takes over, as the relationship between the police and the CPS remains ill-defined, particularly in relation to charging and gathering of evidence. Some academics suggest that the criminal justice system is dominated by the interests of the police and the CPS plays a subsidiary role 22, that it obviously cannot break from police control and become independent, as police resources are far superior to CPS powers 23
Further reforms have taken place in 1998, when the new Labour government incorporated the Glidewell Report findings together with the Narey Report 24, which included greater co-operation with the police on preparation of prosecution files, greater local autonomy and a stop to discontinuing a case on public interest grounds that it is not serious, which should amend the above statistics.
20 A Ashworth, ibid, pp194-195
21 Criminal Justice”(2nd edition) Steve Uglow (Sweet & Maxwell) p192
22 “The Case for the Prosecution”: McConville, M Sanders, A and R Leng  Routledge p124
23 “Constructing the case for the Prosecution: Andrew Sanders: A Reader on Criminal Justice: Nicola Lacey Oxford Readings in Socio-Legal Studies p122
24 “Review of Delay in the Criminal Justice System”: Home Office 1997 Ch 3 pp10-11
In conclusion, the CPS has been subject to criticism since its commencement, in terms of its performance, though it has achieved much, it still has some way to go. One view 25 is that the powers of the CPS should be enhanced to allow the CPS to discontinue a case (amending section 23 of the Prosecution of Offences Act 1985). The creation of combined CPS and police criminal justice units, as suggested in the Glidewell Report, has been implemented and success has yet to be monitored.
Another view is that the police should be subject to more restrictions and that there should be a body to re-investigate cases to achieve a fairer criminal justice system 26 or open police files to the defence 27. The link between the police and the CPS mean that some suspects cannot rely upon the CPS to be fair, particularly those from ethnic minorities, and it could be argued that the defence in the adversarial system should be strengthened to make it fairer 28. The up-to-date publications are being awaited to see if any of the reforms have amended the above statistics.
25 Block, Corbett & Peay, ibid
26 Andrew Sanders, ibid p 127
27 McConville and Baldwin: “Recent Developments in English Criminal Justice and the Royal Commission on Criminal Procedure (1982) 10 Int J Sociology of Law 287
28 M. Maguire et al, ibid, p1058
A Practical Approach to Criminal Procedure (10th edition): J. Sprack (Oxford 2004) pp 62-67
Criminal Justice (2nd edition): Steve Uglow (Thomson/Sweet & Maxwell 2002) pp 190-205
Criminal Justice (3rd edition): An Introduction to the Criminal Justice System in England & Wales: M. Davies, H. Croall, J. Tyrer (Pearson/Longman 2005) pp 187-195
Dispensing Justice: Responses to Crime (Volume 4): Lord Windlesham (Oxford 2001) pp 105-132
Oxford Readings in Socio-Legal Studies: A Reader on Criminal Justice: Nicola Lacey (Oxford 1994) pp 103-128
Text & Materials on the Criminal Justice Process (3rd Edition): Nicola Padfield (Lexis Nexis/Butterworths 2003) pp 178-186
The Criminal Process: An Evaluative Study (2nd edition): A. Ashworth (Oxford 1998) pp 177-197
The Handbook of The Criminal Justice Process: M. McConville & G. Wilson (Oxford 2002) pp 9-10
The Oxford Handbook of Criminology (3rd edition): M.Maguire, R. Morgan & R. Reiner (Oxford 2002) pp 1057-1059
The Review of the Crown Prosecution Service: A Report (!998) Cm 3960 (The Stationery Office) pp 71-91
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