Statutory Duties and Powers
Principle
The Crown Prosecution Service was established in 1986. Its Head is the Director of Public Prosecutions, who exercises his or her functions under the superintendence of the Attorney General. The Prosecution of Offences Act 1985 (the Act) provides the statutory framework for the duties and powers of the DPP and The CPS.
The main features of the system established by the Act include:
- a national prosecution system for England and Wales;
- the conduct of prosecutions independently of the police;
- public accountability;
- consistent national criteria for the prosecution of offences;
- local decision making based on nationally established principles;
- the ability of any Crown Prosecutor to exercise the powers and duties of the DPP.
Superintendence of the Attorney General
The Director is accountable to the Attorney General for the exercise of his or her functions. In turn, the Attorney General and the Solicitor General (the Law Officers) can be called to account by Parliament for the decision-making and other acts of The CPS. In exercising his or her prosecution functions, the Attorney General acts independently of the government.
The superintendence of the Attorney General over the independent CPS, the details of whose decision-making usually cannot be discussed publicly, is an important constitutional safeguard for the public. In practice, the Director consults the Law Officers or keeps them informed about the conduct of appropriate cases; consults them in the development of aspects of CPS policy and practice; and may discuss with them the whole range of casework and organisational issues.
Since September 2000 both the Headquarters Directorates and the Areas provide direct briefing to the Law Officers. To assist a protocol has been devised between the Private Office of the DPP and the Legal Secretariat to the Law Officers.
<Refer to Protocol for Briefing The Law Officers – Annex 3 below in this section>
The Law Officers answer oral questions in Parliament and in addition respond personally to correspondence about The CPS from Members of Parliament. This is an important element of our public accountability. In both cases, The CPS must provide full information about the points raised.
The Code for Crown Prosecutors
Section 10 of the 1985 Act requires the Director to publish a Code for Crown Prosecutors (the Code) giving guidance on the general principles to be applied by The CPS in deciding:
- whether proceedings for an offence should be started;
- if a case has already started, whether it should continue;
- whether the charges are appropriate;
- what representations to make for mode of trial.
<Refer to the Code for Crown Prosecutors>
The Code is a public statement of the principles which must guide your decisions in every case. It is kept under continual review to ensure that its principles remain appropriate, and in line with legislative and procedural changes. The most recent revision of the Code was in October 2000 following an extensive consultation process.
The Service has been entrusted by Parliament and the public with a wide discretion in its decision-making, and all members of The CPS must exercise that discretion responsibly. Applying the principles in the Code makes sure that the right factors are taken into account in all cases, and that The CPS adopts a consistent approach to decision-making. The Code does not prevent you from taking the special features of an individual case into account, where they are relevant to a decision. But arbitrary differences in approach lead to unfairness and injustice.
The need to ensure that CPS decision-making is fair and based on the application of consistent principles underlies all CPS guidance.
Human Rights
As stated above the Code is a public statement of the principles which must guide your decisions in every case. The incorporation of the Convention does not change this. What it does mean is that all relevant Convention factors must be taken into account when making any decision under the Code in exercise of the prosecutorial discretion.
This is reinforced by section 6 of the Human Rights Act which provides that it will be unlawful for a public authority to act in a way which is incompatible with the Convention. This means that there is a legal obligation on us to ensure that all our decisions take into account relevant Convention obligations.
<Refer to Guidance on ECHR – CPS On-Line>
The Statement of Purpose and Values
The aims of The CPS are contained in the Statement of Purpose and Values (the Statement), which is set out in Annex 2 . The Statement explains our role in the criminal justice system and provides a public expression of the principles by which we exercise our functions. Key principles are:
- independence
- fairness
- openness
- accountability
All our work should be guided by the Service’s commitment to providing an efficient, effective prosecution service through the operation of the principles set out in the Statement of Purpose and Values.
The remainder of this Chapter is a brief guide to the principal duties and powers of the Director and The CPS. Detailed guidance, if any (eg on the exercise of our statutory powers and our relationship with the police) is set out in other Chapters. Check the index if you need more information.
Guidance
The Prosecution of Offences Act 1985 imposes both statutory duties and confers discretionary powers upon the DPP as Head of The CPS. Other statutes also confer powers and responsibilities upon the DPP, often requiring the Director’s consent to the institution of proceedings for particular offences.
Statutory Duties
The main statutory duties under the 1985 Act include the duty to:
- to take over the conduct of all criminal proceedings instituted on behalf of a police force (except specified offences) – Section 3(2)a;
- to institute and conduct criminal proceedings in appropriate cases – Section 3(2)(b);
- to take over the conduct of all binding over proceedings instituted on behalf of a police force – Section 3(2)c;
- to take over the conduct of all forfeiture proceedings commenced under Section 3 of the Obscene Publications Act 1959 – Section 3(2)d;
- to give advice to police forces, to the extent the Director thinks appropriate, regarding criminal offences – Section 3(2)e;
- to appear for the prosecution on appeals in criminal cases when directed – Section 3(2)f;
- issue a Code for Crown Prosecutors – Section 10;
- make an annual report to the Attorney General – Section 9.
Conduct of Criminal Proceedings
The duty to take over the conduct of a case only arises when proceedings are instituted on behalf of a police force. Not all criminal prosecutions are started on behalf of the police. Under Section 6 of the Act, the right of individuals and other public bodies to bring prosecutions is preserved. If the arrest and the investigation of the offence has not been carried out by the police, then the proceedings are not commenced on their behalf: see R –v- Stafford Justices ex parte Customs and Excise Commissioners (1991) 2 All ER 201.
The time when proceedings are instituted is defined in Section 15(2) of the Act and includes when an information is laid for a summons or a warrant, and when a person is charged. But in practical terms you will not be able to take over the conduct of the case until you receive a file from the police.
The expression “police force” means any of the forces maintained by the public authorities under the Police Act 1964, plus any body of constables specified by the order of the Home Secretary see Prosecution of Offences Act 1985 (Specified Police Forces) Order 1985 . The order presently includes.
- British Transport Police;
- City of London Police;
- Metropolitan Police;
- Ministry of Transport Police;
- Royal Parks Constabulary (England)
- United Kingdom Atomic Energy Constabulary;
- Numerous Harbour and Docks Police Forces.
Taking over the conduct of case implies a positive role: it means more than just letting a case carry on because the police have charged an offence. A Crown Prosecutor has the responsibility to review the case and to decide whether or not it should proceed in accordance with the national criteria set out in the Code for Crown Prosecutors. Throughout the life of the proceedings, the conduct of the case is the responsibility of The CPS.
The CPS does not have to take over specified proceedings. These are dealt with in detail below.
Institution of Proceedings
By Section 3(2)b of the Act, the Director can institute and conduct proceedings when it appears appropriate for any reason; for example if the case is important or difficult. It would be unusual for a whole case to be commenced by the exercise of this power, since the police will normally charge an offence if advised to do so. An example of the day to day exercise of this power is the substituting or adding of charges at court to a case already stated by the police.
Binding Over Proceedings
The duty under Section 3(2)c of the Act applies to binding over proceedings formally commenced by complaint, and also to proceedings arising from the general jurisdiction of magistrates to bind over persons to keep the peace under the Justices of the Peace Act 1361 and at common law.
These proceedings are distinct from the power of the court to bind over persons charged with an offence which is already being prosecuted by The CPS.
Binding over proceedings are deemed to be criminal proceedings under Section 15(4) of the Act for various purposes, including the powers of the DPP to institute proceedings, assign the conduct of cases and to take over private prosecutions.
If proceedings follow a complaint for bind over conducted by The CPS, for example a complaint by a surety under Section 116(2) of the Magistrates Courts Act 1980, it would be appropriate to also take over conduct of that case.
Race Relations (Amendment) Act 2000
The Race Relations (Amendment) Act 2000 (RR(A)A 2000) came into effect on 2 April 2001. The new Act extends the scope of the Race Relations Act 1976 (RRA 1976) to outlaw race discrimination by public authorities in any of their functions (section 19B).
The Act places a general duty on a wide range of public authorities (including The CPS) to eliminate unlawful discrimination and to promote equality of opportunity and good relations between persons of different racial groups. The general “duty to promote” came into effect on 2 April 2001.
There are safeguards for criminal investigations and prosecutions. Section 5 of the RR(A)A 2000 provides for procedural measures designed to prevent claims under the Race Relations Act being used inappropriately to circumvent criminal proceedings or investigations. Underlying these provisions is the policy aim of preserving the criminal courts as the sole forum for determining guilt or innocence.
The Act requires each public authority to publish an “Equality Statement”. This will take the form of a three year action plan to highlight how the requirements of the Act will be complied with. The CPS action plan will be available via The CPS Website from May 2002.
Forfeiture Proceedings under Section 3 of the Obscene Publications Act 1959
The duty to take over forfeiture proceedings under Section 3 of the Obscene Publications Act 1959 arises after a summons has been issued. It may be appropriate for you to give advice to the police before that stage. For example the police may seek your advice after the search warrant has been executed to decide which items should be put before the court for forfeiture.
Advising the Police
Giving advice to the police on all matters relating to criminal offences is a very important function. As well as providing advice in early consultations, charging and consulting on individual cases, it includes explaining general prosecution policies and working together to implement joint tasks, such as disclosure. It may also mean helping in police training where the opportunity arises.
While it is appropriate to inform and explain the guidance contained in the Prosecution Manual and other documents, until it is placed in the public domain you should not give copies or extracts to other agencies.
Appearing in Appeals
When directed by the court, the DPP has a duty to appear for the prosecution in the following situations:
- appeals from the High Court in criminal cases;
- appeals from the Crown Court to the Court of Appeal (Criminal Division), and onwards to the House of Lords;
- appeals to the Crown Court against orders made by the magistrates under Section 12 of the Contempt of Court Act 1981.
Annual Report
The DPP has a duty under Section 9 of the Act to make an annual report to the Attorney General, which is published and presented to Parliament each year. The report will set out the key achievements and developments o the previous twelve months. The Annual Report is an expressions of the Director’s accountability to the Attorney General, and to the wider public through Parliament.
Statutory Powers
Powers conferred by the 1985 Act and other statutes include the following:
- the power to assign the conduct of criminal proceedings – Section 5;
- the ability to take over any criminal proceedings – Section 6(2);
- the power to receive documents from the magistrates court – Section 7;
- the power to designate persons employed by The CPS who are not Crown Prosecutors to conduct bail applications – Section 7a;
- the power to discontinue criminal cases in the magistrates court – Section 23;
- the power to consent to the commencement of proceedings for specific offences – various statutes;
- the power to receive documents disclosing criminal offences – Companies Act 1985, Police and Criminal Evidence Act 1984, Solicitors Act 1974;
- the power to obtain access to records or documents which may disclose information regarding a criminal offence – Companies Act 1985, Land Registration Act 1925;
- power to make appropriate enquiry into election offences – Representation of the People Act 1983;
- power to request the adjournment of an inquest – Coroner’s (Amendment) Act 1926.
All these powers are discretionary; they do not have to be exercised in all cases. But the decision whether or not to exercise a power conferred by a statute must be taken in accordance with the guidance and principles set out in the Statement of Purpose and Values and in the Code.
Assigning the Conduct of Proceedings
The power to assign the conduct of proceedings under Section 5 of the 1985 Act has two important effects. It specifically permits the use of solicitor agents, and it also allows for the conduct of CPS cases by other prosecuting agencies where appropriate.
The person appointed to institute or conduct proceedings must be either a solicitor or a barrister employed by a public authority. Barristers in private practice can be used to conduct cases without the need to assign under Section 5. Any party to proceedings can instruct counsel.
A person appointed under Section 5 has all the powers of a Crown Prosecutor but must exercise those powers subject to instructions given by a Crown Prosecutor. You will need to give guidance to agents on how to deal with any unexpected problems which may occur at court.
The responsibility for assigned cases remains with The CPS. This means that important decisions about the case can only be made by a Crown Prosecutor. The duty to review the case cannot be delegated.
Taking Over Other Prosecutions
The right to institute private prosecutions is kept by Section 6(1) of the Act, but the DPP may take over the conducts of the proceedings at any stage. This applies to proceedings started by private individuals and to those brought by other prosecuting authorities or bodies.
Delivery of Documents
Section 7(1)2(3) of the Act allows the Director or any Crown Prosecutor to call for all documents connected with committal proceedings to be delivered to him, rather than sent to then Crown Court in the usual way. The circumstances would have to be exceptional for this Section to be used. It might happen when you want to see the papers in a private prosecution before the case got to the Crown Court, perhaps with a view to taking over conduct of the case.
Section 7(4) imposes a duty on the Justices Chief Executive to send papers to The CPS when:
- the case is not prosecuted by The CPS, and
- the prosecution is withdrawn or delayed, and
- there appears to be no satisfactory reason for the withdrawal or failure to proceed.
This gives The CPS an opportunity to take over an abandoned or poorly conducted private prosecution, if it is in the public interest to do so.
Discontinuance
Section 23 of the Act allows cases conducted by The CPS to be terminated by the service of discontinuance notices on the court and the defendant. Although there are other ways of halting cases, this power is unique to The CPS. Once The CPS has conduct of the case, you have the power to decide whether the matter ought to continue and the means to stop the case straightaway if appropriate.
Consents
A number of offences can only be prosecuted with the consent of the DPP or the law officers. The statute creating the offence will usually contain the requirement for the consent.
Generally the reasons for a consent being necessary include where the decision to prosecute my be affected by the following:
- national security;
- relations with other countries;
- public policy;
- Sensitive or difficult circumstances.
The power to give consent on behalf of the DPP can be exercised by any Crown Prosecutor under directions given by the DPP: Section 1(7) of the 1985 Act. The fact that The CPS have taken over conduct of the case does not automatically imply consent. You must always consider the issue of consent separately and specifically for each case where it arises.
Receiving Documents Disclosing Criminal Offences
A number of statutes impose duties on courts, public bodies and other persons to bring to the attention of the DPP information which shows a criminal offence has been committed. These include:
- Section 632 of the Companies Act 1985: if a company is subject to compulsory or voluntary winding up, the court or the liquidator may refer offences committed by officers of the company to the DPP.
- Section 449 of the Companies Act 1985: the DPP is a “competent authority” to receive material seized from a company under the provisions in Sections 447 and 448.
- Section 90 of the Police and Criminal Evidence Act 1984: police authorities are required to send reports concerning criminal offences committed by police officers to the DPP, unless the chief officer considers it does not merit prosecution.
- Section 32(4) of the Solicitors Act 1974: the council of the Law Society can disclose to the DPP material connected with an investigation into a solicitor’s accounts. This can be sent by the Law Society of its own accord or requested by The CPS.
Many of these referrals will be direct to headquarters. If the material is sent to a branch, you will need to consider whether it is appropriate to handle the matter locally.
Obtaining Access to Documents or Records
The DPP has the power to apply for access to certain documents under some statutory provisions. For example:
- Section 721 of the Companies Act 1985: application can be made to the High Court for access to a company’s books, if it is believed that they contain evidence of an offence committed by an officer of the company.
- Section 112a of the Land Registration Act 1925: the DPP may apply to inspect land registry records where it is suspected that they disclose evidence of an offence.
Requesting the Adjournment of an Inquest
Where criminal proceedings are in progress the DPP can request the adjournment of an inquest which has been opened by a coroner: Section 20 Coroner’s (Amendment) Act 1926 as amended by Schedule 10 of the Criminal law Act 1977.
Specified Proceedings
Section 3(2)A of the 1985 Act provides that The CPS do not have to take over the conduct of specified proceedings. Specified proceedings include a number of minor road traffic and other offences, the routine nature of which does not require independent review.
Various offences are specified for these purposes in the Prosecution of Offences Act 1985 (Specified Proceedings) Order 1985, as amended by the 1988 Order. A list of specified offences can be found at <Annex 1 below>.
When a summons is issued for a specified offence the police have conduct of the matter unless and until The CPS take over the proceedings.
We are bound to take over proceedings if they cease to be specified. You may also consider it appropriate to take over the conduct of a case, even if it is still specified, in suitable circumstances. Examples might be if a defendant has other non-specified matters outstanding, or at the request of the police because the case is complicated.
Proceedings cease to be specified when:
- the summons is served, unless it is accompanied by the documents required by Section 12 of the Magistrates Courts Act 1980; or
- if at any time the magistrates begin to hear evidence.
The police may use the procedure under Section 12 of the Magistrates’ Courts Act 1980 for cases which involve offences other than specified ones. A common example is the offence of careless driving. If any of the offence charged are not specified the case will need to be taken over and reviewed in the usual way, even though the Section 12 procedure has been used.
The Section 12 procedure has an important advantage for suitable offences. It means The CPS does not need to send a prosecutor to court simply to read out a statement of facts where the defendant is pleading guilty by post. This will be dealt with by the clerk. The police should be encouraged to use this procedure in appropriate cases.
The effect of specified proceedings is that it allows the police to deal with simple road traffic offences without sending the file to The CPS. If used effectively, and combined with the Section 12 procedure, it reduces the need for The CPS to spend time on cases which are straight forward and not contested.
Vexatious Prosecutions
There may be occasions when the right of the private prosecutor to start criminal proceedings is abused. Intervention by The CPS in the proceedings under Section 6(2) of the 1985 Act is always an option, but such power must only be exercised with care. <See Private Prosecutions, elsewhere in this guidance>.
Accordingly you may receive complaints about the activities of the private prosecutor from the magistrates clerk or from persons affected by the proceedings.
Section 25 of the 1985 Act amended Section 42 of the Supreme Court Act 1981 to extend the restrictions on vexatious litigants to criminal proceedings. The High Court may make a criminal proceedings order on the application of the Attorney General, if satisfied that any person has “habitually and persistently and without reasonable ground instituted vexatious prosecutions, whether against the same person or different persons”.
Section 33 of the Employment Tribunals Act 1996 allows an Employment Appeal Tribunal to exercise its discretion to justify making a restriction order against a person who has habitually and persistently instituted vexatious proceedings notwithstanding the lapse of time since any new application to institute proceedings had been made by that person. The Court of Appeal decided that such an order was within the discretion of the appeal tribunal and it was not one with which the court could interfere. A.G. v Wheen Court of Appeal Times 23 January 2001.
The application has to be made by the Attorney General the decision whether to apply for an order will be taken by the Law Officer’s department.
General
When the police commence proceedings for a specified offence, they will decide whether or not to use the procedure under Section 12. Reasons why they may decide not to include:
- the offence is connected with non-specified matters;
- the circumstances are complicated or the offence is aggravated in anyway;
- the case involves legal points upon which they would like advice;
- the matter is sensitive for any reason and needs to be dealt with by The CPS;
- they anticipate a not guilty plea.
If the Section 12 procedure is not adopted, the case ceases to be specified when the summons is served. You will need to make arrangements with the police for the papers in such cases to be sent directly to The CPS for review.
Where the police decide to adopt the procedure under Section 12, they will prepare and send the relevant documents to the defendant. They may also decide to serve statements under Section 9 of the Criminal Justice Act 1967. The police are responsible for the service of the documents and for the conduct of the case until it is taken over.
The case may cease to be specified even where the Section 12 procedure has been adopted by the police where:
- the defendant enters a not guilty plea;
- the summons is served but no response is received;
- an equivocal plea is entered;
- Section 9 statements sent out by the police are rejected;
- the court decides to hear evidence.
You will need to make arrangements with the police and the court as to how cases which cease to be specified are notified to The CPS. Once the matter ceases to be specified, you will need the file from the police to conduct a review.
Normally this means an adjournment if necessary. If prosecution evidence needs to be heard, you may need time to contact witnesses or serve statements, if not already done.
Some magistrates courts list all cases which use the Section 12 procedure in a single, separate court. Others will list such cases including specified offences, in a mixed court along with pleas, trials etc. You should try to persuade local courts to have separate “specified only” MCA courts. This will mean a prosecutor does not have to attend, and you will have no involvement in specified cases until it becomes necessary.
If this cannot be achieved you should aim to reach a compromise which achieves as little involvement as possible. For example, arranging with the clerk to sift through the Section 12 procedure cases before court: any cases which require CPS input can then be dealt with first and the prosecutor released. Prosecutors should not read out the statement of facts in postal MCA pleas; this applies equally to non-specified matters.
If a specified case is taken over, it must always be recorded or registered in the case tracking system. You must make sure that specified cases which are taken over at court because a defendant attends and gives evidence or where you take over proceedings to accept an alternative plea, are all recorded. Non-specified cases which use the Section 12 procedure should also be recorded when received for review.
Vexatious Prosecutions (Procedure)
Should you receive a complaint about a vexatious litigant, you will need to guard the information about the matter including:
- whether there are any other cases past or current, brought by the individual concerned;
- whether a summons has been issued by the Justices;
- if there have been other cases, what the outcome was;
- any other relevant information about the circumstances.
If there appears to be some substance to the complaint, ie the litigant has previously instituted proceedings without justification, you should send a report of all the information obtained to Headquarters Casework. The report should contain your assessment of the situation. The matter will then be passed to the Law Officer for a decision.
Useful links
<The Code for Crown Prosecutors (Victims and Witnesses)>
Further information
Annex 1: “List of Specified Offences”
1. Fixed penalty offences within the meaning of section 27(5) of the Transport Act 1982.
2. The offence under section 8(1) of the Vehicle (Excise) Act 1971.
3. The offences under sections 18, 20, 21, 30(1) and (2), 33AA(3), 40(5)(b), 44(1), 84(2), 143, 161(4) and (5), 162(1), 164(1) and 168(3) of the Road Traffic Act 1972.
4. All offences under the Road Traffic Regulation Act 1984 other than those under sections 35(5), 43(5) and (12), 47(3), 52(1), 108(3), 115(1) and (2), 116(1) and 129(3) and paragraph 6(3) of Schedule 12 or those mentioned in paragraph 1 above.
5. The offences arising by contravention of Regulations 3(9) involving a pedal cycle) and 4(27), (28) and (30) of the Royal and other parks and Gardens Regulations 1977.
Annex 2: “Statement of Our Purpose and Values”
The Crown Prosecution Service reviews and, where appropriate, prosecutes criminal cases, following investigation by others.
We also advise the police on matters relating to criminal offences. In each case which we review, we consider whether there is sufficient evidence and, if so, whether the public interest requires a prosecution.
We are committed to providing a high quality prosecution service, working in the interests of justice. As a unified Service, we will apply common standards, policy and operational practices throughout England and Wales, ensuring a consistent and timely approach.
Our decisions will be independent of bias or discrimination, but we will always consider the interests of others. We will act with integrity and objectivity, and will exercise sound judgement, with confidence.
In all our dealings with each other and the public, we will be open and honest. We will show sensitivity and understanding to victims and witnesses and treat all defendants fairly.
We are accountable to Parliament and the public; we will work together with our colleagues to maintain public trust, and to provide an efficient criminal justice system. In explaining our decisions, we will be courteous and helpful.
In order to achieve these high standards, we will report on our performance, and respond to criticism positively.
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