CPS Relations with the Police
Principle
The core statutory function of the CPS is providing legal advice and making charging decisions.
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 with the onset of statutory charging. You will need the cooperation and assistance of the police in many aspects of CPS work. Likewise the police will require our skills to help bring defendants before the Court.
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.
This chapter does not deal with statutory charging, and reference should be made to The Director's Guidance on Charging, elsewhere on this website.
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.
Furthermore, it is clear that the public policy grounds for the justification of LPP are inappropriate when transposed into the area of public prosecutions because:
- Material obtained in the course of a police investigation should be disclosed to the accused if it is of benefit to him/her;
- The police are in any event under an obligation to be candid and must furnish all relevant information to the Crown Prosecution Service.
- 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 Chapter 8, Disclosure Manual, elsewhere in this 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:
- Does the advice relate to the rights, liabilities, obligations or remedies of the client either under private law or under public law? If so;
- Does the communication fall within the policy underlying the justification for legal advice privilege in our law?
- 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?
For further guidance, please refer Gateway Pol 49 of 2005.
Conferences
In many cases it is sensible to discuss matters requiring advice in conference. Issues can then be fully and frankly discussed and advice given. Preparation, by reading the papers in advance and researching points of law, is vital.
Make a note of any oral advice given. Confirm your advice on MG3 thereafter.
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.
Useful references
The Director's Guidance on Charging, elsewhere on this website
Disclosure Manual, elsewhere in this guidance
Goodridge v Chief Constable of Hampshire Constabulary [1999] 1 All E.R. 896
Three Rivers District Council v Bank of England (No 6) [2004] 3 WLR 1274
Gateway Pol 49 of 2005