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;
- Assign CPS proceedings to be conducted by another prosecuting agency where it is agreed that they have the lead or major interest.
or
Prosecutors convention
This is an agreement between the CPS and 16 prosecution authorities (DTI, SFO, Customs and Excise, HSE, DSS, Inland Revenue, Environment Agency, MAFF, Intervention Board, Bank of England, Army Prosecuting Authority, Royal Air Force Prosecuting Authority, Royal Na\/y Prosecuting Authority, maritime and Coastguard Agency, Occupational Regulatory Authority and Civil Aviation Authority) to abide by broad principles which promote improved liaison and a co-ordinated approach to decision making where 2 or more signatories have a common interest.
The Convention is reproduced at Annex 1 together with a list of the nominated contact points for each signatory. Where a signatory to the Convention is involved or has an interest in a related prosecution the principles of the convention are mandatory. Whilst the names of a number of signatures have changed over the last 5 years the principles should still be applied and work is in progress to update the convention.
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.
Local prosecution co-ordinator
A Prosecution Co-ordinator has been nominated for each of the 42 CPS Areas and Casework Directorate. 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.
A list of CPS Prosecution Co-ordinators is at Annex 2 and the liaison contacts for each signatory of the Convention is at Annex 3.
National Liaison
Criminal Justice Policy Division (CJPD), United House, York is responsible for strategic liaison, maintaining and developing relationships between prosecuting authorities/agencies. Where an issue arises which cannot be resolved locally, CJPD should be advised and will provide appropriate guidance.
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 1-254
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.
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. Archbold 1-154 Ito 160
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.
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.
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 Act.
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.
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 Act 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.
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.
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;
- The file accords with the Manual Guidance.
and
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 tq 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 Customs and Excise 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 Act a prosecutor must send standard letters of assignment set out in section 2 of the National Forms Register National Forms Register to (where appropriate):
- the other prosecuting agency;
- the defendant or his or her solicitors;
- the police;
- the court.
In assigned cases the CPS should not withdraw or discontinue the case.
Assigned cases: costs
When proceedings are assigned under section 5 of the Act:
- 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 Act 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.
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 and the Association of Chief Police Officers [ACPO] promoting a structured approach to liaison where there is a work-related death. Copy of the protocol is at Annex 4.
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 CPS, HSE, the Local Government Association, British Transport Police and ACPO.
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;
- Manslaughter against members of the medical or paramedical profession.
or
All such cases must be referred to Casework Directorate.
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 Casework Directorate.
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 Solicitors Branch 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.
The Benefits Agency
The principles of the original agreement with the DSS should still be followed.
The principles of the Prosecutors Convention complement the current agreement with the DSS which is set out in full at Annex 5 Policy Group Circular No.1511994 of this Chapter.
Agreement should be reached with DSS in writing as to the responsibility for the case having regard to the principles - Annex 5.
The Revenue and Customs Prosecution Office (RCPO)
In the majority of cases in which there are dual interests of both police and RCPO primacy is dealt with by liaison at an operational level between the investigators and should not trouble the CPS. However, where the matter is with or has been referred to the RCPO Solicitors Office then the principles of the Prosecutors Convention - Annex 1 apply and must be followed.
When a request is received from the RCPO to take over conduct of the whole prosecution, the criteria outlined in paragraphs 5.28 above should be applied and, where appropriate, formal assignment should take place.
When the CPS wish to take over the prosecution of a RCPO case, following consultation, and it is to proceed with a combination of Customs and police charges, the prosecutor should ensure that the CPS are in possession of a Proceedings Order issued by the Commissioners. Such an Order will also be required in the event that proceedings are subsequently to be stayed.
Where RCPO wish to take over a CPS prosecution, the decision should be taken by the Head of the Criminal Justice Unit, Head of Trial Unit or Head of HO Division.
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.
Policy Directorate should be advised of any points of procedural or legal interest arising out of such cases.
Useful references
R v Stafford Justices ex parte Customs and Excise Commissioners (1991) 2 All ER 201
Archbold 1-254
Archbold 1-154-160
Relevant website: HSE: www.hse.gov.uk under 'Enforcement'.
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