CPS Relations with the Police

Principle
Guidance
Associated Guidance

Principle

The relationship between the CPS and the police is an important one. The police have a key role in the prosecution process: they are responsible for the detection and investigation of criminal offences. The police also perform many of the tasks integral to the conduct of a prosecution: warning witnesses to attend court, obtaining further witness statements as required, and keeping victims informed as to the progress of the case.

It is essential to develop and maintain a constructive working relationship with the police, especially in light of the interaction of Prosecutors and the police within the process of Statutory Charging. You will need the cooperation and assistance of the police in many aspects of CPS work.

A good communications system between the CPS and the police is vital. Both will benefit from a constructive means of exchanging views and information.

In working closely with the police, it is important not to compromise the independence of the CPS. The functions of the CPS and the police are different and distinct. In giving advice to the police, you must not assume the role of investigator or direct police operational procedures.

However, providing advice to the police in all matters relating to criminal offences is one of the core statutory functions of the CPS. Prosecutors should therefore be alert and open to all appropriate opportunities for giving such advice, where it may contribute to the effectiveness of an investigation and prosecution.

This chapter does not deal in detail with Statutory Charging. Reference should be made to the Director's Guidance on Charging, elsewhere in the Legal Guidance.

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Guidance

The relationship between the CPS and the police carries with it responsibilities to:

inform,
consult,
advise.

Consultation and the provision of information are two way activities. At many stages in the prosecution process it is essential that both responsibilities are successfully performed: for example, at review, with proposals to discontinue and in fulfilling the prosecution's disclosure duties.

The duty to advise the police derives from the provisions of section 3(2)e of the Prosecution of Offences Act 1985, from paragraph 2.2 of the Code for Crown Prosecutors and the Director's Guidance on Charging. It is a logical extension of our function to conduct criminal proceedings commenced by the police. Timely advice from the CPS can ensure that, from the start, cases are properly brought. In large, serious and complex cases in particular, the proactive early involvement of the prosecutor can bring considerable benefits to both the police and the CPS in conducting an effective prosecution; refer to the Director's Guidance on Charging, elsewhere in this guidance.

Advice may be requested by the police, or it may be necessary to give advice without a specific request having been made (for example, where a change in the law may urgently affect the investigation of offences or the presentation of evidence).

General advice or explanations can be given to the police, provided that they are consistent with CPS national guidance.

Most of the time the police will request advice on specific cases or areas of concern. Such requests may be one or more of the following:

Informal advice
Early investigative advice
Pre-Charge advice and Charge Decision

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Informal Advice

The police may make a request for advice without submitting a file. This may occur during a conversation or by telephone. How you deal with an oral request depends upon the particular subject. If the matter is straightforward it would be wrong to insist upon the formal submission of papers which would be time-consuming and unnecessary for both the police and CPS. This will, however, only be in cases where the advice is generic, on general points of law and not case specific. For case specific enquiries and advice it is important that there is an appropriate audit trail for any advice that the police may take in investigating a case.

You will need to decide whether the information supplied is sufficient for the request to be dealt with properly. Hasty or ill-considered advice can lead to the wrong decisions being made by the police, will damage confidence in the CPS and may need to be justified at a later stage.

You should, therefore, exercise significant caution when dealing with informal requests for advice. If you need to consult others or to research a point of law before advising, a return telephone call may be the answer.

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Early Investigative Advice

The police may seek CPS advice at any stage of an investigation. Early Investigative advice may well save both police and CPS resources and time later on.

In particular the Director's Guidance on Charging (4th Edition) notes that:

Prosecutors may provide guidance and advice in serious, sensitive or complex cases and any case where a police supervisor considers it would be of assistance in helping to determine the evidence that will be required to support a prosecution or to decide if a case can proceed to court.
Specific cases involving a death, rape or other serious sexual offence should always be referred to a local Area prosecutor as early as possible and in any case once a suspect has been identified and it appears that continuing investigation will provide evidence upon which a charging decision may be made. Wherever practicable, this should take place within 24 hours in cases where the suspect is being detained in custody or within 7 days where released on bail.
Where a case is referred to CPS at an early stage the prosecutor may determine the information to be provided by the police, the stage at which the evidence will be reviewed and the test to be applied, and this may be in accordance with specific protocols including those relating to cases dealt with by CPS Central Casework Divisions or Group Complex Casework Units.

In an investigation which is / is likely to be lengthy, you may need to consider the effect of time limits on detention. The passage of time may also cause you to anticipate abuse of process arguments (refer to Abuse of Process, elsewhere in the Legal Guidance), or may affect your view as to whether it will be in the public interest to prosecute the matter when the investigation is complete (Code for Crown Prosecutors).

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Pre-Charge Advice and Charge Decision

The referral to the CPS for a Decision whether to charge a suspect is sometimes referred to as Pre-Charge Advice. This is the most frequent interaction between the police and CPS. It is governed by the Director's Guidance on Charging, elsewhere in the Legal Guidance, The Guidance is issued under the provisions of section 37A of the Police and Criminal Evidence Act 1984 (PACE) and sets out arrangements prescribed by the Director of Public Prosecutions for the joint working of police officers and prosecutors during the investigation and prosecution of criminal cases.

On occasion a case referred to the CPS may require further evidence to be obtained before a charge decision can be made. In such circumstances the Prosecutor will advise the officer of the further material required in order to obtain a charging decision.

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Information required for investigative advice and Charging decisions

Paragraph 30 of the Director's Guidance on Charging (4th Edition) sets out the information to be provided where a case is being referred to the prosecutor for investigative advice or guidance on a Charging decision.

Paragraphs 32-34 set out the arrangements for the referral of cases to the CPS for advice or a charge decision. This includes:

Referral arrangements for all but the most serious and complex cases will be by telephone using the CPS Daytime Direct or CPS Direct telephony arrangements;
Face to face consultations will take place in the most serious, sensitive and complex cases;
The submission of a written advice file must only take place in exceptional circumstances

The submission for face to face and written advice should be facilitated by the police contacting the Area Charging Manager , a local CPS contact point or specialist unit prior to submission of any information.

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Appropriate and Inappropriate Requests for Advice

It is proper to advise on the legal or evidential effect of any particular operational procedure, whether the activity has taken place or is merely proposed. But you must not advise on the appropriateness or the efficacy of any operational matter.

CPS advice on appropriate subjects will often affect police operations. But the decision on how to implement the CPS advice (if it is accepted) is a matter entirely for the police

Advice concerning police operational matters should be confined to:

indicating the nature of the evidence required;
commenting on the likely effect of actual or proposed activity on a prosecution;
identifying legal or evidential elements which need to be addressed;
advising on the admissibility of evidence obtained / likely to be obtained;
highlighting any public interest considerations which may affect any eventual prosecution.

The CPS should not advise the police on issues concerning:

operational matters;
questions of civil law;
cases which are not properly referable under the Director's Guidance on Charging, which should be dealt with by police supervisors;
the grant of licences (e.g. liquor, gaming, firearms, etc);
internal disciplinary matters;
matters relating to traffic control (e.g. parking restrictions, PSV licensing, etc).

There is sometimes an overlap between criminal offences and matters of civil law (for example, the storage and disposal of property in police possession; the housing and destruction of dangerous dogs). Appropriate advice may be given where the issue is concerned with the conduct of a prosecution (for example, an item may be required as an exhibit). However, where the request for advice is an inappropriate one because it concerns matters of civil, not criminal, law, the police should be referred to their own solicitors: refer to Communications between CPS and police - Legal Professional Privilege or Public Interest Immunity.

Requests for advice may be inappropriate for other reasons: A junior officer might request advice on a matter which could properly be resolved by his supervising officer; or the police might persist in sending advice requests where the decision could and should have been taken by themselves.

Such requests should be dealt with sensitively. Encourage the police, where possible, to channel all advice requests through a suitable single channel or filter. Local liaison should help resolve any difficulties.

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Communications between CPS and police - Legal Professional Privilege or Public Interest Immunity

Legal Professional Privilege ('LPP') arises out of the confidential relationship that exists between a lawyer in private practice and a client. This relationship allows for the non-disclosure of information or documents that would reveal what has been said or written between a lawyer and his/her client. It can only arise in a "relevant legal context".

LPP cannot normally apply to communications and documents passing between the CPS and the police because the relationship is not analogous to that of a private law firm or barristers' chambers advising or conducting litigation on the behalf of a private client. The relationship between the CPS and the police is not a solicitor client relationship. The CPS is an independent prosecuting authority created by statute, which has broad powers and extensive duties relating to the advising and prosecuting of criminal cases. The role of the CPS is to act for the public and to act in the public interest. Furthermore, the relationship that exists between the CPS and the police is governed by statute. The police have no choice in who should conduct a public prosecution, unlike a member of the public who has the freedom of instructing any solicitor. The police provide information to prosecutors in order for decisions to be taken as to whether a prosecution is appropriate, what charges should be sought or whether an investigative technique would be admissible as evidence at trial.

It is clear that the public policy grounds for the justification of LPP are inappropriate when transposed into the area of public prosecutions because:

i. Material obtained in the course of a police investigation should be disclosed to the accused if it is of benefit to him/her;

ii. The police are in any event under an obligation to be candid and must furnish all relevant information to the Crown Prosecution Service.

iii. The prosecution is not free to prepare its case without the 'risk' that the accused will be able to recover the material generated by its preparations. In fact the position is quite the reverse, and in most cases the material used by an accused person to demonstrate his innocence will be material generated in the course of the police investigation.

This does not mean that communications between the CPS and police should be disclosed to the defence, either routinely or upon request. Such documents will be protected on public interest grounds, and public interest immunity should be claimed. A compelling factor in favour of non-disclosure will be the importance of encouraging freedom of communication between police forces and the CPS without the fear that communications will at some later stage be subjected to inspection, analysis and detailed investigation. For further guidance on public interest immunity, reference should be made to the Disclosure Manual, elsewhere in the Legal Guidance.

In extremely rare circumstances, the police can effectively become the client of the CPS and LPP would therefore apply. In Goodridge v Chief Constable of Hampshire Constabulary [1999] 1 All E.R. 896, Moore-Bick J. held that the general test in deciding whether confidential communications between the DPP and the police were subject to legal professional privilege was whether a relationship tantamount to that of client and legal adviser existed between parties. Such a relationship would exist when:

"... the police were seeking legal advice for their own benefit of a kind or in circumstances which would be analogous to a client approaching his solicitor for legal advice." (page 896).

In any unclear situation, the test to be applied is whether the advice given or communication occurred within a "relevant legal context" as defined by the House of Lords in Three Rivers District Council v Bank of England (No 6) [2004] 3 WLR 1274. In that case, Lord Scott set out a three stage test for deciding whether LPP had arisen in a particular set of circumstances:

i. Does the advice relate to the rights, liabilities, obligations or remedies of the client either under private law or under public law? If so;

ii. Does the communication fall within the policy underlying the justification for legal advice privilege in our law?

iii. Is the occasion on which the communication takes place and is the purpose for which it takes place such as to make it reasonable to expect privilege to apply?

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Requests for Police Enquiries

You may receive an allegation, from a person or body other than the police, that a criminal offence has been committed. Examples might include:

a complaint by a private individual;
a referral by a judge or magistrate regarding matters arising at court;
a complaint from a local authority

In such cases, you will need to decide whether the police should investigate the matter. Factors which may influence your evaluation may include:

the source of the allegation;
whether any previous complaints have been made;
whether there has already been a police investigation;
the nature and seriousness of the offence;
the likely result if enquiries are made.

If you conclude that there should be further investigation, you should refer the matter to the police. If in doubt, it may be preferable to request an enquiry.

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Resolution of Disputes

There will be times when the police disagree with CPS decisions. Common instances are likely to include:

advice given by CPS but not followed by the police;
further investigation requested but not performed (for instance Action Plans on an MG3)
disagreement over a proposed discontinuance;
dissatisfaction by the police about the general conduct of a case by the CPS.

There should be regular informal contact locally at appropriate levels to ensure that difficulties are quickly resolved. In cases of Pre-Charge advice, there is an established escalation procedure set down in the Director's Guidance if matters cannot be satisfactorily resolved between the immediate parties. Locally, the police should be able to discuss matters of concern with an identifiable member of CPS staff. Equally, this will enable you to raise concerns the other way as and when they occur.

A formal complaint will require a response in accordance with the CPS complaints procedure. Generally, the senior person responsible for that aspect of the case giving rise to the complaint should draft the reply, which should be as clear and open as possible.

On a branch, substantial disputes should be notified to the BCP / CJU Head / Trial Unit Head. Similarly, the draft response to a formal complaint should be passed to the BCP / CJU Head / Trial Unit Head for approval.

With cases dealt with personally by the BCP / CJU Head / Trial Unit Head or a SCL, formal complaints and draft responses should be submitted to the CCP (Legal Director London/Head of Division Casework Directorate) for approval.
Every effort should be made to resolve matters locally. As a last resort, the Chief Constable can raise his concerns personally with the CCP. If essential, the DPP may become involved.

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