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Relations with other prosecuting agencies

Principle

Statutory Duty

The CPS has a statutory duty under section 3(2) (a) Prosecution of Offences Act 1985 (the Act) to take over proceedings instituted by or on behalf of the police. However, the CPS also has discretion to take over proceedings in any other case under section 6(2) of the Act.

Prosecutions are regularly brought by other prosecuting agencies where the body concerned has a particular expertise or statutory interest. In general the CPS will neither wish nor need to intervene in such cases.

However there are some circumstances in which it may be appropriate to:

  • take over the conduct of proceedings which would otherwise be pursued by another body; the CPS will only do this against the wishes of the other prosecuting agency or body in wholly exceptional circumstances where all other avenues of discussion have been exhausted; or
  • assign CPS proceedings to be conducted by another prosecuting agency where it is agreed that they have the lead or major interest.

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Prosecutors' convention

This is an agreement between the CPS and prosecution authorities (Attorney General's Office, Civil Aviation Authority, Department for Business, Innovation and Skills, Department of Work and Pensions, Environment Agency, Financial Services Agency, Food Standards Agency, Gambling Commission, Health and Safety Executive, Maritime and Coastguard Agency, Office of Fair Trading, Office of Rail Regulation, Serious Fraud Office and Service Prosecuting Authority) to abide by broad principles which promote improved liaison and a co-ordinated approach to decision making where two or more signatories have a common interest.

The latest revision of the Convention was published on 1 April 2009. A copy of the Prosecutor's Convention is available elsewhere in the Legal Guidance. Where a signatory to the Convention is involved or has an interest in a related prosecution the principles of the convention are mandatory.

Where a prosecuting authority or agency is involved which is not a signatory then the principles of the Convention provide a framework for best practice and should, where practicable, be followed.

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Local prosecution co-ordinator

A Prosecution Co-ordinator has been nominated for each of the 13 CPS Areas and Central Casework Divisions. It is their responsibility to develop local links with the other prosecuting authorities/agencies and ensure CPS compliance with the principles of the Convention and any other protocols such as the Work Related Deaths Protocol between CPS, HSE, Local Authorities, British Transport Police and ACPO.

The Prosecution Co-ordinator should be informed of any issue affecting the relationship with a signatory to the Convention and should be seen as a local source of reference.

National Liaison

Strategy and Policy Directorate (SPD) is responsible for strategic liaison, maintaining and developing relationships between prosecuting authorities/agencies. Where an issue arises which cannot be resolved locally, SPD should be advised and will provide appropriate guidance.

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Guidance

Institution of proceedings

Difficulties may arise when it is not clear who has instituted proceedings or there are overlapping interests and the same subject is being prosecuted by different agencies, or a single investigation has revealed offences which are normally prosecuted by separate agencies.

Proceedings are instituted by the police when they have investigated, arrested and brought the arrested person to the custody officer (R v Stafford Justices ex parte Customs and Excise Commissioners (1991) 2 All ER 201). (Archbold 1-327)

Conversely, proceedings are instituted by another prosecuting agency when they have been solely responsible for the investigation and arrest of the suspect, even though he or she is taken to the police station to be charged by a custody officer.

The case should probably be conducted by another prosecuting authority if any of the following factors apply:

  • the police did not conduct the majority of the investigation; 
  • the police were only involved in overseeing a search, effecting an arrest or assisting other investigators in the conduct of an interview; 
  • the other authority is in possession of all the main exhibits; 
  • someone other than a police officer is named on the charge sheet as the person accepting the charge or as the officer in the case.

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Evidential and practical considerations

Proceedings in the magistrates' court or the Crown Court can only be properly joined together when the charges:

  • are founded on the same facts; or 
  • form or are part of a series of offences of the same or similar character. 

If the cases can be properly joined a prosecutor should also have regard to the following:

  • the evidential advantages of a single set of proceedings; 
  • fairness to the defendant; 
  • the interests of witnesses; 
  • any financial savings which may result from a single set of proceedings.

In deciding who should have conduct of a single set of proceedings a prosecutor should discuss the issue with the other prosecuting authority/agency concerned and consider the following:

  • the nature and gravity of the offences which are the subject of each set of charges or proceedings; 
  • the issues highlighted at 2.1 of the Prosecutors Convention.

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Common prosecuting interest

Where two or more prosecuting agencies are involved or may have an interest in a prosecution, consultation must always take place to determine the issues highlighted by clause 2.1 of the Prosecutors Convention. The convention uses the term "related", which means that two or more prosecuting agencies propose to prosecute the same individual or company for offences that may result in associated court proceedings. Often they may arise out of the same set of circumstances.

In cases in which it remains necessary for separate sets of proceedings conducted by the CPS and another prosecuting authority/agency it is highly desirable that the same prosecution advocate should be instructed in the Crown Court.

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Assigning proceedings

Where it is agreed that another prosecuting agency should take over the conduct of the proceedings in their entirety, it is possible to assign the proceedings instituted on behalf of the police under the terms of section 5(1) of the Prosecution of Offences Act 1985.

Assignment gives the other agency day to day conduct of the proceedings, but the case remains the responsibility of the CPS. The duty of review does not cease and the CPS should continue to deal with:

  • the representations to be made as regards bail or custody; 
  • the acceptance of pleas; 
  • unused material.

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Requests to take over proceedings

Where the CPS is asked by an outside agency to institute or take over proceedings in the absence of a related police prosecution. Only in wholly exceptional cases would the CPS exercise its authority to take over proceedings under section 6(2) of the Prosecution of Offences Act 1985 against the wishes of another prosecuting agency.

The decision to take over proceedings should always be taken at Chief Crown Prosecutor or Director Casework level and the CPS should only accede to such a request if satisfied that there are particular difficulties or other significant public interest considerations that merit involvement. The following factors are a guide only:

  • the proceedings have been brought in blatant disregard of the Code for Crown Prosecutors; 
  • there is an unsatisfactory reason for the withdrawal of proceedings or a failure to proceed.

Where CPS takes over the conduct of proceedings the Service assumes complete control of them.

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Active intervention

In certain circumstances, the CPS will take the initiative and intervene in a private prosecution conducted by a body which regularly institutes criminal proceedings and which is recognised as possessing a particular expertise about matters in respect of which it prosecutes. It will be very unusual for the CPS to intervene in such a case, but the wider public interest may on rare occasions support intervention particularly where:

  • there is a danger that the prosecutor is about to stop an undoubtedly important case for what may be an inappropriate reason; or
  • where the police, the CPS, or any other public prosecutor had promised the defendant that he would not be prosecuted at all (a promise of an immunity from prosecution) not including cases where the prosecuting authorities had merely informed the defendant that they would not be bringing or continuing proceeding; or
  • where the defendant has already been cautioned for the offence, and the giving of the caution was in accordance with Home Office cautioning guidelines.

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Procedure

Advice

Generally

The CPS should not provide advice or guidance unless it is clear that:

  • the CPS is the appropriate prosecutor;
  • that a Crown Prosecutor is in full possession of all the relevant facts; and 
  • the file accords with the Manual of Guidance.

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Provision of advice

In advice cases where a criminal offence is revealed that could or would normally be prosecuted by another prosecution authority the prosecutor should check that the police have notified the relevant prosecution authority/agency and consider whether the case may be more appropriately handled by the authority/agency concerned.

Where there may be some doubt as to the appropriate authority the prosecutor should always discuss the matter with the other prosecuting authority/agency with an interest and agree who is to prosecute the matter.

Consent to prosecute

Where the CPS takes over the conduct of proceedings a prosecutor must ensure that any consent to the institution of proceedings which is required from a person other than the Director is obtained before proceedings commence. This applies particularly in Revenue and Customs prosecutions.

Assigned cases

Where another prosecuting authority/agency has the major interest in a prosecution or primacy has been agreed it may be appropriate to consider assigning CPS proceedings to that authority/agency.

Where a case is assigned under section 5 of the Prosecution of Offences Act 1985, a prosecutor must send standard letters of assignment to (where appropriate):

  • the other prosecuting agency; 
  • the defendant or his or her solicitors; 
  • the police; or
  • the court.

Templates for the standard letters are on the infonet under the Parliamentary Forms section.

In assigned cases the CPS should not withdraw or discontinue the case.

Assigned cases: costs

When proceedings are assigned under section 5 of the Prosecution of Offences Act 1985:

  • the CPS must not ask the other prosecuting authority to seek any costs which we may have incurred;
  • it is not appropriate to make any contribution towards the expenses of the other prosecuting agency in conducting the CPS part of the case.

When the CPS take over the conduct of a case under section 6(2) of the Prosecution of Offences Act 1985,the CPS must only seek the costs the Service has incurred in the conduct of the case. This does not apply where the CPS takes over the conduct of private prosecutions.

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Health and Safety Executive (HSE)

Work related deaths

A protocol has been developed between the CPS, HSE, The Local Government Association (representing local authorities), British Transport Police, the Association of Chief Police Officers [ACPO], Office of Rail Regulation, Maritime and Coastguard Agency and Chief Fire Officers Association promoting a structured approach to liaison where there is a work-related death. A copy of the protocol is can be found below. Also available is the Work Related Deaths Protocol: Practical Guidance.

The protocol builds on the Prosecutors' Convention and extends the principles of co-ordinated decision making to encompass the investigation stage.

The principles of the protocol must always be followed. Where there is an issue that impacts upon a principle articulated in the protocol the matter should be drawn to the attention of the local Prosecution Co-ordinator who may wish to consult the National Liaison Committee responsible for the strategic overview of relations between the signatories of the Protocol and other interested parties who also attend such as representatives from the Coroners Society and the Independent Police Complaints Commission.

Pre-charge advice manslaughter/corporate manslaughter

Where consideration is given to charging an individual with manslaughter in a situation envisaged under the protocol, police should seek the advice of the CPS.

CPS Areas should be aware that where the offence concerns:

  • allegations of gross negligence manslaughter; 
  • allegations of corporate manslaughter; or 
  • manslaughter against members of the medical or paramedical profession.

All such cases must be referred to Special Crime and Counter Terrorism Division.

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Prosecution under the Health and Safety at work etc (HSW) Act 1974

Offences under the Health and Safety at Work etc Act 1974 may only be prosecuted by:

  • Health and Safety Executive 
  • Local Authority responsible for enforcement in certain establishments e.g. shops and offices 
  • Environment Agency 
  • CPS

Where the CPS is approached with a view to granting consent under section 38 of the HSW Act 1974 the matter should always be referred to Special Crime and Counter Terrorism Division.

Where the Health and Safety Executive refer an incident to the police with a view to prosecution for offences other than under the 1974 Act, the case may be progressed locally.

Where, on review, a CPS prosecution may justify the inclusion of supplementary or complementary charge(s) under the HSW Act 1974, the Crown Prosecutor may find it helpful to discuss the matter with HSE Legal Advisers Office who are a valuable source of reference.

In all cases where HSE Inspectors were involved in an investigation either in the lead or assisting police the HSE will wish to recover their costs and the necessary application, informed by discussion with the HSE, should be made to the sentencing court.

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Revenue and UKBA prosecutions (formerly RCPO)

The Revenue and Customs Prosecutions Office ('RCPO') was established on 1st April 2005 under the Commissioners for Revenue and Customs Act 2005 (CRCA). It created the post of Director of Revenue and Customs Prosecutions (DRCP) and authorised him to institute and conduct criminal proceedings in England and Wales relating to criminal investigations by the Revenue and Customs.

Section 37 of the CRCA authorises the DRCP to designate any member of RCPO (to be known as a Revenue and Customs Prosecutor) to exercise any of his functions. It is from this provision that RCPO prosecutors derive the authority to institute and conduct criminal proceedings in relation to criminal investigations carried out by the Revenue and Customs.

Certain offences, detailed below, can only be prosecuted by agencies other than RCPO with the consent of the DRCP (or the Commissioners of Revenue and Customs or one of the Law Officers; see section 145(1) of the Customs and Excise Management Act 1979 (CEMA)). The DRCP's power to grant consent cannot be delegated; i.e. the DRCP must personally make the decision with regard to the granting of consent to prosecute those offences which require consent.

Following the merger of the RCPO with the CPS on 1st January 2010, the Director of Public Prosecutions was appointed as DRCP. The two roles which the Director holds derive from two separate pieces of legislation, i.e. the CRCA (in respect of his role as DRCP) and the Prosecution of Offences Act 1985 (in respect of his role as DPP).

Section 40 of CRCA provides that a member of the RCPO may not disclose information which it holds in connection with any of its functions and which relates to a person whose identity is specified in the disclosure or can be deduced from it. A person who does so commits an offence. The rationale behind this prohibition is the need to ensure that the confidentiality of taxpayers' personal information is preserved.

This means that although the DPP and the DRCP are one and the same person, a request to prosecute can only be considered by him when acting as the DRCP and never as the DPP, as this could risk a breach of Section 40 CRCA.

Any prosecutor who has been designated under section 37 of the CRCA can institute proceedings in respect of offences under the Customs and Excise Acts. This phrase is defined in section 1(1) of CEMA to include, as well as CEMA itself:

  • the Customs and Excise Duties (General Reliefs) Act 1979; 
  • the Alcoholic Liquor Duties Act 1979; 
  • the Hydrocarbon Oil Duties Act 1979; 
  • Tobacco Products Duty Act 1979; and
  • 'any other enactment for the time being in force relating to customs or excise'. Section 145(1) CEMA also applies to offences under the Value Added Tax Act 1994, and certain other revenue offences. See the guidance on Consents to Prosecute, Annex 1 Part 2, for a full listing of the relevant offences.

All former RCPO prosecutors in the CPS retain their designation and have the authority to institute and continue proceedings in relation to Customs and Excise Act offences. This includes former RCPO lawyers in the Central Fraud Group, all lawyers in the UKBA Unit within Organised Crime Division and all former RCPO lawyers within the Proceeds of Crime Unit.

Where any non-RCPO designated lawyer (whether from the CPS or from any other prosecuting authority, for example DEFRA or DWP) wishes to institute proceedings for a Customs and Excise Act offence, the consent of the DRCP must be sought and obtained (section 145(1) CEMA).

The UK Border Agency (UKBA) took over investigation of all non-fiscal smuggling offences in December 2009. On 2 December 2009 the Attorney General assigned to the DPP the power to prosecute UKBA investigated cases using the general power of assignment under section 3(2)(g) of the Prosecution of Offences Act 1985. Where a designated RCPO prosecutor institutes such proceedings, consent is not required and the case can be passed to another CPS division, unit or area for it to be progressed. In all other cases, the DRCP's consent will be required.

For the Procedure for obtaining consent, prosecutors should refer to the guidance on Consents to Prosecute.

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Service Prosecutions Authority (SPA) - concurrent criminal jurisdiction Protocol

A Protocol regarding the exercise of criminal jurisdiction in England and Wales, was agreed between the Director of Public Prosecutions, the Director of Service Prosecutions, and the Ministry of Defence, and signed in October 2011; the principles of the Protocol have also been approved by the Attorney General. The Protocol sets out the principles to be applied when there is concurrent jurisdiction between the mainstream criminal courts and the courts martial (service justice) system, and provides a framework for how cases may be handled by the CPS or Service Prosecutions Authority (SPA).

The Protocol has been created to assist prosecutors in determining the most appropriate jurisdiction in which to charge and subsequently try someone subject to service law where the offence was committed in England or Wales.

This Protocol replaces Home Office Circular 35/1986 to the extent that it deals with this issue. A copy of the Protocol can be accessed at Annex 5.

The Protocol makes clear that its effectiveness depends in part on appropriate decisions being made as to which police force(s) undertake the investigation; ie - whether the investigation is undertaken by one of the Home Office Police Forces, Ministry of Defence Police (a civilian force) or Service Police.

It is important that prosecutors engage in early consultation with the investigating police force and with the SPA as described at paragraph 2.3 of the Protocol.

Paragraph 2.4 also provides a description of other factors which may need to be taken into account, and may affect the application of the principles at section 2.2.

The signatories of the Protocol have agreed to review the Protocol within 18 months of it being signed.

Industrial Tribunals

Industrial Tribunals have the power to secure the attendance of witnesses and the production of documents by the issue of summonses. A person who has been summoned to attend before an Industrial Tribunal commits an offence if he or she subsequently fails to attend. The offence is summary only with a maximum penalty of a fine not exceeding level three on the standard scale: The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 (511993 No.2687), Rule 4(2), and the Employment Protection (Consolidation) Act 1978, Schedule 9, Regulation 1 (7).

The Service has agreed with the Central Office of the Industrial Tribunals (COlT) to undertake the prosecution of such offences.

The authority to prosecute offences, other than those referred to the Service by the police, derives from section 6(2) Prosecution of Offences Act 1985. Generally speaking - the police will not be involved in these cases: the relevant office of the Industrial Tribunal will provide the evidence. CPS may, however, invite the police to conduct an investigation if appropriate.

Operational arrangements have been agreed between the Service and the COlT. These arrangements will govern the procedure, as well as the documentation which the COlT will provide when referring a case to the Service. A pro-forma Information and witness statement should be used in all cases.

Where a case is received from the COlT, prosecutors should ensure that the Operational Arrangements have been complied with. The COlT should be contacted if further documentation or information is required.

The COlT accepts that the CPS has the right, and indeed the duty, not to prosecute cases which do not satisfy the evidential sufficiency or public interest criteria set out in the Code for Crown Prosecutors.

Strategy and Policy Directorate should be advised of any points of procedural or legal interest arising out of such cases.

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Useful references

R v Stafford Justices ex parte Customs and Excise Commissioners (1991) 2 All ER 201 

Disclosure Manual Legal Guidance - Chapter 8

Abuse of Process Legal Guidance

HSE website

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Work-related Deaths: A Protocol for Liaison

Link to the protocol for liaison

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CPS - SPA concurrent jurisdiction protocol

Link to the protocol

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