A REVIEW OF THE ROLE AND PRACTICES OF THE CROWN PROSECUTION SERVICE

A CONSULTATION PAPER

April 2002

INTRODUCTION BY THE RT HON THE LORD GOLDSMITH QC, HER MAJESTY’S ATTORNEY GENERAL

There can be few prosecuting decisions more important than whether to charge a person with having unlawfully caused the death of another. To charge unjustly may be to impose on an innocent person and his family an unwarranted punishment. To fail to charge may mean a serious crime – and any unlawful killing is a serious crime - goes unpunished. Either may lead to a loss of confidence in the rule of law and the administration of justice.

Where the death has occurred whilst the deceased was in custody or at the time of an arrest, this decision may, for a number of reasons, be difficult or controversial and sometimes both. As His Honour Gerald Butler QC, said in 1998, when reporting, at the request of the then Director of Public Prosecutions, into the quality of decision making by The CPS into deaths in custody:

“If a prosecution is wrongly brought (by that I mean where there is no realistic prospect of a conviction) the consequences can be catastrophic for the person prosecuted and his family. If a prosecution is not brought when it should be, then the family and friends of the deceased will suffer a deep sense of grievance, accompanied by a loss of confidence in the criminal justice system. Further, there is a powerful public interest in the prosecution of police officers who have committed an offence of such gravity.”

It is essential therefore that the prosecuting decisions in these cases are taken in accordance with the best and most appropriate practice. Moreover, it is important that The CPS commands confidence that their decisions to prosecute or not to prosecute are reasonable and accurate; that they have been taken objectively on the basis of the best evidence by an independent person with the required degree of expertise and experience; and that they are not affected by bias or by improper pressure from any source.

As Attorney General, one of my most important roles is to superintend the Director of Public Prosecutions in the exercise of his functions as head of The Crown Prosecution Service; and to answer to Parliament for the efficient and effective conduct by The Crown Prosecution Service of the prosecution process.

Since my appointment as Attorney General I have in a number of cases become acutely aware of the profound impact on the families of the deceased when a decision is taken not to prosecute a police or prison officer arising from the circumstances in which the deceased met his death while in custody.

As HH Gerald Butler QC also pointed out, whereas all the checks and balances of the criminal trial process are available to a person who is accused of a crime, and the trial process takes place openly in court, there are few checks and balances available to those aggrieved by a decision not to prosecute. The CPS does of course take complaints and representations seriously and has reviewed decisions in individual cases on receiving representations from the family of a deceased person. But the only legal proceedings open to a family to challenge a decision are proceedings to apply for judicial review in the High Court, which are difficult to mount; or, as a last resort, a private prosecution.

It is therefore especially important to be confident that the approach to prosecutions is right. I have therefore decided, with the full support of the Director of Public Prosecutions, to conduct this review, which I announced by Parliamentary Answer on 13th December 2001. Its purpose is to consider the present practices of The Crown Prosecution Service and to assess whether any changes need to be made. If changes are needed, the Director of Public Prosecutions and I are committed to implementing them. If no changes are needed, or to the extent that no changes are needed, I hope that the consultation process and the findings of this review will themselves make a real practical contribution towards increasing the level of public confidence in prosecution decision-making and practices in this field.

This consultation also fits in with my overall commitment to assist The CPS to achieve a high level of public confidence in its approach to our diverse communities, following critical statements such as that in the Denman Report which examined, at the request of The CPS, the record of The CPS in relation to discrimination and equality of opportunity in its internal employment policies and practices. This work is well under way. Of the ten recommendations made by Sylvia Denman in July 2001, five have already been achieved, with the remainder to be implemented by mid-2002. I also established last year a Race Advisory Group to advise me in my superintendence role on these sensitive and important areas. Although considerable work has been done, The CPS, in partnership with other criminal justice agencies, still has a way to go in order to successfully secure public confidence from all sections of our diverse communities.

My concern is to focus on the fundamental approach and practices of The CPS rather than to attempt to re-open decisions in individual cases. The review is also not intended to cover areas outside my responsibilities such as police practices or matters relating to the inquest process. But I want views from as many viewpoints as possible. I am therefore inviting wide public consultation on the paper attached.

CONSULTATION PAPER

SUMMARY OF THE ROLE OF THE CPS

1.1 In our legal system, the police have the responsibility for investigating allegations of criminal conduct and for starting criminal prosecutions. It is the role of The CPS to take those cases over and to prosecute them. The CPS is responsible for pursuing prosecutions in the vast majority of the criminal cases that come before the courts in England and Wales each year: some 1.4 million cases.

1.2 The CPS reviews every case presented to it and has the power to stop (or discontinue) a case if a prosecution is not justified; it also has the power to decide the appropriate charge(s) when cases proceed. It is therefore ultimately a prosecuting lawyer independent of the investigation who takes the decision to prosecute.

1.3 In a number of cases each year, The CPS either decides not to proceed with a prosecution that has already been started by the police; or advises the police not to bring proceedings in the first place. The more serious and difficult the case, the more likely it is that the police will seek advice, if they can, before bringing charges.

1.4 The CPS is responsible for the selection of the correct charges and for the conduct of court proceedings by advocates, whether CPS lawyers or members of the independent professions (a barrister or a solicitor advocate).

1.5 The general principles underpinning the key decisions taken by CPS prosecutors are set out in the Code for Crown Prosecutors, which is referred to in more detail below. A copy of the Code is included with this consultation paper.

THE INVESTIGATION OF DEATHS IN CUSTODY

2.1 Article 2 of the European Convention on Human Rights (ECHR) provides the following protections: 1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

2.2 In addition, Article 2 provides for a procedural obligation to investigate deaths where, arguably, there has been a breach of the principal obligation in Article 2. The nature and scope of the duty to investigate has most recently been considered by the courts in R on the application of Amin, and R on the application of Middleton v the Home Secretary [2002] EWCA Crim. 390. Arrangements for investigating deaths in prison

2.3 The Prison Service investigates every suicide or murder of a prisoner in custody. It also investigates or, at least, undertakes a clinical review of every death by natural causes. These investigations are conducted by a specially trained senior governor, Senior Investigating Officer’s (SIO), while clinical reviews are undertaken by doctors. Both are allocated to the investigation from outside the establishment where the death occurred.

2.5 The family of the deceased is kept informed of the facts of the case. The prison itself notifies next of kin of the death and provides basic factual details of the circumstances, as well as offering a visit to the prison. The SIO also offers to meet with the family at the outset to explain how they intend to conduct the investigation and to allow the family to contribute any relevant information. The SIO also keeps the family informed of the progress and any developments in the investigation. All contact is, of course entirely at the discretion of the family. Prisons also notify families that Inquest (an independent charity) is available to offer help and support.

2.6 When the investigation report is complete, the Prison Service offers to disclose it to the family (subject to the coroner’s consent) in advance of the inquest. If requested, the report is disclosed in person by the SIO to the family. This enables the SIO to answer any questions the family may have about the death and the investigation. The disclosure of the report also allows the family to have full details of the death of a loved one before the inquest is held.

2.7 A recent development has seen the involvement of a more independent element in the investigation process in appropriate cases. An example would be to involve a child protection officer and member of the Youth Justice Board in the investigation of a juvenile self-inflicted death.

Police investigations

2.8 Where a complaint has been made that police conduct resulted in death, the appointment of the investigating police officer is a matter for the Chief Officer of the relevant police force, subject to the agreement of the Police Complaints Authority (PCA), under s.89 (10) of the Police and Criminal Evidence Act 1984. Deaths of members of the public during or following police contact have to be reported to the Home Office (Police Leadership and Powers Unit) within 48 hours of death. Police forces must also report the outcome of any coroner’s inquest into such a death.

2.9 The PCA is an independent body established under s.83 of the Police and Criminal Evidence Act 1984 and has responsibility for supervising the investigation of certain complaints against the police. A supervised investigation is mandatory where there is a complaint that the conduct of a police officer has resulted in a death, but the PCA may be asked by a Chief Officer to supervise in other circumstances also.

2.4 The chief purpose of the investigation is to find out what happened, the cause of death, how the incident was managed and how any similar occurrence may be prevented in the future. The conclusions of the investigation are contained in a report, which contains the SIO’s findings, conclusions and recommendations. In addition, the SIO may recommend that consideration be given to a disciplinary investigation into the conduct or performance of staff.

2.10 Where the PCA is involved, the appointment of the investigating officer must always be approved by the PCA. The PCA may also direct the police to follow particular lines of inquiry. The investigation is only complete when the PCA has issued a statement under s.89 (1) of the Police and Criminal Evidence Act 1984 that it is satisfied that the complaint has been properly investigated. No criminal proceedings may be brought until that statement has been issued.

2.11 The Police Reform Bill currently before Parliament includes provisions for the establishment of a new police complaints system and the Independent Police Complaints Commission (IPCC), which will replace the PCA.

2.12 Like the current system, all deaths in police custody will be referred to the IPCC. However, unlike the PCA, the IPCC will have its own body of investigators with all necessary powers so that it can choose to effectively investigate the case separately from the police whether or not a complaint has been made.

2.13 Furthermore, while the PCA is obliged to supervise the investigation of all deaths in police custody, the IPCC will be able to decide on the best course of action following the referral. The IPCC will take this decision on each individual case by making a judgment about the seriousness of the case and the level of public interest in it. It will be able to determine the appropriate course of action from four options: to investigate itself, manage a police investigation, supervise a police investigation or leave the matter to a police investigation. In all cases that engage Article 2 of ECHR, for example where it is alleged that the death is at the hands of the state or the state has failed to take appropriate steps to protect a person’s life, an IPCC investigation would be expected, so that appropriate independence is provided to the investigation.

2.14 The following questions relating to the relationship between The CPS and the police should therefore also be read as applying to the relationship between The CPS and IPCC investigators in relation to cases where the IPCC investigates.

2.15 The new arrangements will not affect investigations of deaths in custody elsewhere, such as in prison service custody. The police will continue to be responsible for the criminal investigation.

The inquest

2.16 A further mechanism for investigating a death is a coroner’s inquest. As is explained more fully below, a coroner’s inquest cannot apportion blame for a death but is essentially designed to establish the cause of death and the identity of the deceased.

The role of The Crown Prosecution Service in police investigations

2.16 The purpose of this section of the review is not to test the arrangements for investigation in the wide sense, but to examine the role of The Crown Prosecution Service in the police investigation process. 2.17 Under section 3(1)(c) of the Prosecution of Offences Act 1985, one of the duties of the Director of Public Prosecutions is “to give, to such extent as he thinks appropriate, advice to police forces on all matters relating to criminal offences”.

2.18 Unlike the PCA, The Crown Prosecution Service has no power to direct the police to conduct an investigation, nor to direct the police to follow any particular line of inquiry, nor to obtain any particular piece of evidence. Neither do the police have the power to direct The CPS to prosecute. If the police commence criminal proceedings in an individual case, it is The CPS that ultimately decides whether those proceedings should continue or not.

2.19 In the context of deaths in custody, the police invariably seek CPS advice as to whether there is sufficient evidence to bring criminal charges for any criminal offence. At that stage the investigation is complete so far as the police (and where relevant the PCA) are concerned. If The CPS asks for a further line of inquiry to be followed up, or for evidence to be probed further, there is no obligation on the police to comply with the request, though in practice it would be unusual in this type of case for a request to be refused.

2.20 During the investigation it is open to the investigating officer to seek advice from The CPS, if he decides that he needs it. Under current arrangements that is his decision alone, reflecting the operational independence of the police and CPS from one another.

2.21 The CPS gives early advice in an increasing number of cases. With the recent moves to a closer working relationship following the implementation of the recommendations of the Review of The Crown Prosecution Service chaired by the Rt Hon Sir Iain Glidewell, published in June 1998, and the piloting of Sir Robin

Auld’s recommendations (in his Review of the Criminal Courts of England and Wales, published in October 2001) that The CPS should assume responsibility for deciding on the charges at the outset of a prosecution, early CPS participation in the investigatory process is set to increase.

2.22 The advantages of early legal advice may be said to include:

• reducing the risk that operational decisions, such as those about methods of obtaining evidence, will detrimentally affect the admissibility of evidence at trial; and
• ensuring that the investigation follows all relevant lines of inquiry, whether pointing towards or away from the guilt of an individual, and in particular that if the case proceeds to a criminal prosecution all relevant information and evidence has been gathered.

2.23 The risks inherent in giving early and continuing legal advice may be said to include:

• that the prosecutor may become identified with the police investigators and their decision-making. If he or she then takes the decision whether to prosecute it may damage the perceived independence and objectivity of The CPS decision, especially where a decision not to prosecute is taken; and
• that individual prosecutors may in fact have to work harder to maintain their objectivity and independence from the police officers with whom they have been working closely.

2.24 Having in the past treated their perceived and actual independence as of overriding importance, The CPS has increasingly recognised that: (a) police officers investigating serious, difficult and sensitive cases want and need early legal advice; and (b) if this is not made available it can detrimentally affect the strength of the evidence and the prosecution case if proceedings are brought, not least because it is often difficult to put things right after the event, particularly once the case reaches court. Accordingly, The CPS is shifting the balance further towards giving early legal advice in appropriate cases and especially in serious, complex or difficult cases and those with an international dimension.

2.25 Where the investigating officer does seek advice, The CPS currently draws a distinction between advising on the likely impact of operational decisions (such as a particular method of obtaining evidence) on the admissibility of evidence – advice which it believes it is appropriate for The CPS to give; and advice on what methods of obtaining evidence should be followed, which it considers to be operational decisions for the police. The CPS may also suggest lines of inquiry that ought to be followed in order to cast further light on questions of importance to the establishment or exclusion of the criminal liability of an individual. For example, if the pathologist has not reached a conclusion about the cause of death The CPS would advise that a further pathologist be consulted.

Consultees are invited to consider:

• What role do they envisage for The CPS at the investigation stage in death in custody cases?
• Where do consultees believe that the balance should be struck between separating the investigation process from prosecution decision-making, and ensuring that investigations are as thorough and proper as possible?
• How proactive do they expect The CPS to be in advising in the pre-charge phase and how do they see this affecting the role of the PCA and the new body that will replace it?
• At what stage or stages should The CPS be asked to advise on a death in custody case? Should The CPS draw any line as to the type of advice that they are prepared to provide? What and why?
• Would consultees feel more, or less, confident in the investigation and prosecution decision if The CPS were proactively advising during the investigation itself?
• How well do consultees consider The CPS probes the evidence gathered by the police?

The role of the coroner’s inquest and the impact on CPS decision making

2.26 Not every death results in an inquest. Under section 8(1) of the Coroners Act 1988 an inquest must be held if:

• there is reasonable cause to suspect that the deceased died a violent or unnatural death; or
• the deceased died suddenly and the cause is unknown; or
• the death took place in prison; or
• inquest is required under some other statute.

2.27 The inquest must be held with a jury if the death occurred in prison; or while in police custody; or if it resulted from an injury caused by a police officer in the purported exercise of his duty; or in certain other circumstances such as where the circumstances of the death affect the health and safety of the public or a section of the public.

2.28 The purpose of the inquest is limited to determining who the deceased was and how, when and where he died. Its purpose is not to determine the criminal liability of an individual; and indeed, a coroner’s inquest is specifically prohibited by section 11 of the 1988 Act from purporting to find an individual guilty of murder or manslaughter.

2.29 An inquest could be held before or after The Crown Prosecution Service takes an initial decision, as follows.

• Where a criminal prosecution has been started for a homicide offence before the inquest starts the coroner has to adjourn the inquest unless the DPP (in the form of a Crown Prosecutor) informs him that the adjournment is unnecessary. An adjournment would normally be necessary to ensure that any subsequent criminal trial is not prejudiced, either by the rehearsal of evidence or any adverse publicity.
• Where there are no criminal proceedings, but the police inform the coroner that a charge may be brought, the coroner must adjourn the inquest for 28 days or longer if this is appropriate (Rule 26 Coroners Rules 1984). If The Crown Prosecution Service then concludes on the evidence before it, gathered during the police investigation, that a prosecution is not justified, the coroner will go on to hold the inquest.
• During the inquest, if evidence emerges from which it appears to the coroner that a person may be liable to be charged with a homicide offence, the coroner may adjourn for a period of at least 14 days and send particulars of the evidence to the DPP (CPS).

2.30 In order to standardise verdicts across the country there are twelve verdicts from which the coroner is encouraged to choose. It is for the coroner to decide, on the evidence he has heard, which of these verdicts it is open to the jury to reach. Of those twelve, two require the jury/coroner to be satisfied of the verdict beyond reasonable doubt. These are unlawful killing and suicide.

2.31 After an inquest, The Crown Prosecution Service reviews any earlier decision not to prosecute, and will always do so if the jury determines that the deceased was unlawfully killed. This review takes account of all the evidence, including that which has emerged at the inquest and in the light of the conclusions reached by the inquest jury. Differences between the conduct of an inquest and the conduct of a criminal trial

2.32 An inquest is not a criminal trial. As the then Lord Chief Justice, Lord Lane, put it in R v South London Coroner, ex parte Thompson [1982] 126 SJ 625: “…. it should not be forgotten that an Inquest is a factfinding exercise and not a method for apportioning guilt…. In an Inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial, where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use”.

How relevant to prosecution decisions is the verdict of an inquest jury?

2.33 In R v CPS ex parte Hitchins; R v CPS ex parte M, June 13 1997 (unreported) Brooke J made reference to the abolition, following unhappy experiences with collapsed prosecutions, of the right of a coroner’s inquisition to return an indictment for an offence of homicide and explained the proper significance of a verdict by an inquest jury of unlawful killing. At page 29, Brooke J said: “In our judgment it is entirely a matter for Crown Prosecutors to determine how much weight they should give to the verdict of the inquest jury, and it would be an abuse of language to stigmatise their decision as perverse or irrational because they did not give it the paramount attention that Mr Ryder claims it should have been accorded. It was essentially a matter for the Crown Prosecutors to decide, in the exercise of their professional judgement, whether there was a realistic prospect of convicting Mr Davies on the evidence available to them”.

2.34 On the other hand, as the Lord Chief Justice pointed out in R v DPP ex parte Manning and Melbourne (2000) 3 WLR 463: “The right to life is the most fundamental of all human rights. It is put at the forefront of the Convention. The death of a person in the custody of the state must always arouse concern, as recognised by section 8(1)(b) and (6) of the Coroners Act 1988, and if the death resulted from violence inflicted by agents of the state that concern must be profound. The holding of an inquest in public by an independent judicial official, the coroner, in which interested parties are able to participate must in our view be regarded as a full and effective inquiry……Where such an Inquest following a proper direction to the jury culminates in a lawful verdict of unlawful killing implicating a person who, although not named in the verdict, is clearly identified, who is living and whose whereabouts are known, the ordinary expectation would naturally be that a prosecution would follow. In the absence of compelling grounds for not giving reasons, we would expect the Director to give reasons in such a case: to meet the reasonable expectation that either a prosecution would follow or a reasonable explanation for not prosecuting be given, to vindicate the Director’s decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision and to meet the European Court’s expectation that if a prosecution is not to follow a plausible explanation will be given.”

2.35 As a matter of common sense, the verdict of a jury at an inquest and its implications, so far as they can be determined, for the way the jury may have accepted or rejected the evidence is bound to be of help to a prosecutor subsequently reviewing the evidence to assess whether there is a realistic prospect of conviction in a criminal court. The verdict may indicate that the jury believed or disbelieved certain accounts; it may show the prosecutor how witnesses responded to cross examination and the effect on their reliability or credibility; and a verdict of unlawful killing following a proper direction to the jury on the law may enable the prosecutor to assess that the jury was sure that an identifiable person was criminally liable for the death.

2.36 However, there may be situations where there is little doubt that a person has been unlawfully killed but it is not possible to identify which individual or individuals from a group may have been responsible. Furthermore, additional evidence may be received on a key question which precludes any realistic prospect of a conviction.

2.37 What is quite clear, however, from the judgment in R v DPP ex parte Manning and Melbourne [2000] 3 WLR 463 is that where a verdict of unlawful killing has been reached by a jury at an inquest, there is a much stronger onus on The CPS to explain to the public any subsequent decision that a prosecution is not justified.

What significance do consultees believe should be attached by The CPS to an inquest verdict of unlawful killing?

To what extent are differences in the conduct of inquests and criminal trials relevant to the significance to be attached to the verdict? What do consultees consider those differences to be?

THE CROWN PROSECUTION SERVICE AND PROSECUTION DECISIONS

The findings of HHJ Gerald Butler QC’s 1998 inquiry into CPS decision making in relation to deaths n custody and related matters

3.1 After two successful applications for judicial review of CPS decisions not to prosecute in death in custody cases. On 28 July 1997 His Honour Gerald Butler QC was asked by the then DPP to conduct a review. Among his terms of reference were:

• to consider the process and quality of casework decision making in deaths in custody cases and, if he considered it necessary, in other parts of The CPS; and
• to consider … what changes, if any, were needed in the approach taken by The CPS to cases involving deaths in custody.

3.2 HH Gerald Butler QC, an experienced former judge, who was given access to the case files and review notes of CPS lawyers in a number of cases, agreed that in all bar one case the decision not to prosecute was, in his judgement, the correct one. He found no evidence of bias on the part of The CPS towards the police.

3.3 He did, however, reach the following conclusions: (
1) that the procedure for taking and confirming the decision not to prosecute (as it then stood) was unsound, in that it did not identify the person actually responsible for taking the decision;
(2) that an erroneous decision not to prosecute can lead to even more undesirable consequences for the public interest than erroneous decisions to prosecute; but that no prosecution should ever be brought unless there is a realistic prospect of a conviction;
(3) that he found no evidence of unfair bias on the part of The CPS towards the police in their decisionmaking;
(4) that the standard of the review notes by the decision makers was adequate overall, though this was not the case in two of the unsuccessful judicial review cases; and
(5) that there was no compulsory training programme within the Directorate.

3.4 HH Gerald Butler QC recommended that:
(1) death in custody cases should be considered by the Casework Directorate (as it is now called);
(2) all decisions whether or not to prosecute should be taken by an Assistant Chief Crown Prosecutor, who has read all the evidence and who should prepare a detailed review note of his reasoning. In exceptional cases where the volume of material is so great that this is impracticable, the ACCP may rely, in part, on a briefing note;
(3) if a decision not to prosecute is made, the case should be sent to Senior Treasury Counsel or to leading counsel (a QC) for advice, unless it is obvious that no prosecution could be justified. If he or she advised in favour of a prosecution, the ACCP should reconsider. If the ACCP disagreed with the advice, the Chief Crown Prosecutor or even the DPP should take the final decision;
(4) decisions not to prosecute should be reconsidered after an inquest had been held;
(5) guidelines should be formulated for cases in which The CPS is the respondent to judicial review proceedings; and
(6) there should be a compulsory training programme for those involved in these cases within the Directorate. HH Gerald Butler QC did not think it was for him to formulate that programme, but it should contain at least the following areas:
(i) understanding and consistency of application of the “realistic prospect of conviction” test, with particular reference to the kind of work received at [Casework Directorate};
(ii) developments and changes in the law; and
(iii) the structure and drafting of review notes.

3.5 In response to this report, The Crown Prosecution Service announced in August 1999 that it had implemented or was implementing all HH Gerald Butler QC’s recommendations. Details about current practice are explained in more detail below.

Fundamental principles of prosecution decision-making

3.6 Under section 10 of the Prosecution of Offences Act 1985, which sets out the powers and duties of the Director of Public Prosecutions and The Crown Prosecution Service, the DPP is required to issue a Code for Crown Prosecutors setting out the general criteria guiding prosecution decision-making. A decision which is made contrary to the tests in the Code leaves that decision open to judicial review (R v DPP ex parte C (1995) 1 Cr App R 136).

3.7 The latest edition of the Code was issued in 2000, after wide internal and external consultation. A copy has been provided with this consultation paper.

3.8 Paragraph 2 of the Code states that “Crown Prosecutors must be fair, independent and objective. They must not let any personal views about ethnic or national origin, sex, religious beliefs, political views or the sexual orientation of the suspect, victim or witness influence their decisions. They must not be affected by improper or undue pressure from any source”.

3.9 The independence of the prosecuting lawyer is regarded as an important safeguard to ensure that a prosecution is only started or continued when the criteria in the Code for Crown Prosecutors are satisfied.

3.10 As the Code for Crown Prosecutors makes clear, the decision whether or not to prosecute an individual is an important one, which carries consequences for everyone concerned. A decision to prosecute can have a profound effect on the accused; and a decision not to prosecute, especially in circumstances in which it is believed or asserted that the decision is or may be erroneous, can affect public confidence in the integrity and competence of the criminal justice system.

3.11 The Code for Crown Prosecutors sets out two fundamental criteria that should govern the decision whether to prosecute. These are: first, that there is sufficient evidence to provide a realistic prospect of conviction. If there is no realistic prospect of conviction, a prosecution must not go ahead, no matter how important or serious the case. According to the Code, it is not the role of The CPS simply to give cases a public airing regardless of the strength of the evidence. But equally, The CPS does not look for the same standard of proof as a jury would need to find before it can convict. That would be too high a standard and would tend to usurp the role of the court. According to the Code, if the prosecutor considers that a conviction is more likely than an acquittal, there is a realistic prospect of conviction.

3.12 If there is a realistic prospect of conviction, the Crown Prosecutor goes on to consider whether a prosecution is needed in the public interest. This review will not deal in detail with the public interest aspect of the decision, because in the kind of case under consideration it would be most unusual for a prosecution of a police or prison officer not to take place if there were sufficient evidence to provide a realistic prospect of convicting an individual for a criminal offence arising from the circumstances of a death in custody.

3.13 It has been suggested from time to time, especially in high profile cases, that The CPS should recognise a category of case that should be prosecuted even though there is assessed to be insufficient evidence to provide a realistic prospect of conviction. The argument for this is said to be that if the offence is very serious the public interest in holding a trial in open court is strong.

3.14 His Honour Gerald Butler QC strongly rejected this argument, on the basis that such an approach would lead to unfairness. It was also rejected after the most recent public consultation on revisions to the Code for Crown Prosecutors. A note setting out the arguments that have been put for and against the present realistic prospects test is attached as Annex 1 to this consultation paper.

3.15 It follows that where The CPS is considering an allegation that a police or prison officer has committed a criminal offence, the Code tests applied are the same as for any other case.

3.16 Further the Attorney General wishes to explore, in consultation, how that test is applied. The fact that an individual prosecutor has to make an assessment drawing on his or her own professional judgement and experience makes it all the more important that The CPS adopts practices and procedures that inspire public confidence in their decision making, whatever that decision may be.

3.17 Before going on to look at how the Code tests are applied in practice, it may help to summarise the framework of criminal offences and the scope of available defences, within which The CPS must take its prosecution decisions. The law

3.18 Brief summaries of the elements of the principal offences that may have to be considered in death in custody cases are set out in Annex 2, together with the principal defences that an accused or suspect may have, depending on the circumstances of the case.

3.19 In a criminal case, the prosecution must prove its case so that the jury is sure that the accused is guilty of the offence charged. That means that the prosecution must prove each element of the offence or offences charged. The prosecution must also be able to prove the identity of each person or persons responsible. There are legal rules regarding the circumstances in which more than one person can be held responsible for an offence.

3.20 Generally speaking, the accused does not have to prove any aspect of his case. If he puts forward a defence, that defence must be disproved by the prosecution if a conviction is to be secured.

Applying the evidential test

3.21 The test for prosecution is not whether a conviction is certain, or even almost certain, but whether, on the available evidence, there is a realistic prospect of the conviction of an individual for an offence. According to the Code for Crown Prosecutors, a realistic prospect of conviction means that it is more likely than not that a jury that has been properly directed on the law will convict. It is an objective test, not a subjective one. So it is not the role of the prosecutor to second-guess what a jury will in fact do. For example, a belief that juries are reluctant to convict police officers is not a legitimate factor to take into account when deciding whether, on an objective basis, there is sufficient evidence to justify a prosecution.

3.22 In assessing the prospects of conviction, prosecutors must consider the totality of the evidence. They cannot pick and choose what evidence to take into account depending on how consistent it is with the putative prosecution case. But equally, focusing unduly on the weaknesses of a case and on conflicts of evidence may obscure its overall strengths. The purpose of the next section of this paper is to ask consultees, in effect, how interventionist they believe The CPS should be when evaluating evidence, and how prosecutors should approach the task of deciding whether there is a realistic prospect of conviction, where evidence is weak or conflicting.

3.23 The CPS has a policy of continuous review. This means that if further evidence is received it is considered and weighed in the balance with the original evidence. Usually any additional evidence is obtained by the investigating police officers, but occasionally it is sent by other sources, including from the defendants or on behalf of the victim(s).

3.24 When a prosecutor assesses whether the evidence is sufficient to provide a realistic prospect of convicting an individual for a criminal offence, the decision at each end of the scale may be obvious. In some cases there is manifestly insufficient evidence; in others it may be obvious that there is sufficient evidence to bring proceedings.

3.25 It is to the cases that require an evaluation of the evidence, where the weight attached to particular pieces of evidence may vary between individuals that this review wishes to draw attention. As the court in R v DPP ex parte Manning and Melbourne said: “In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case would be likely to fare in the context of a criminal trial before a jury. This exercise of judgement involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even when one disagrees with it. So the Courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied”.

3.26 There are any number of variables, but there are three which are particularly worth focusing on in this context:
(1) the way in which a prosecutor assesses the credibility of witnesses and the impact of conflicts of evidence between those witnesses on the prospects of conviction;
(2) the implications of conflicting or uncertain scientific evidence on the prospects of conviction; and
(3) the relevance of the defence case to the prosecutor’s assessment of the prospects of conviction.

3.27 The issue of the relevance of the verdict reached at an inquest is discussed in section 2 above. Credibility/reliability of witnesses

3.28 Weighing evidence is not a precise science. The more evidential material there is to consider, the more scope there is for individuals to differ in the weight they attach to particular pieces of evidence. Crown Prosecutors have to reach reasoned and reasonable decisions on the totality of the evidence when assessing whether there is a realistic prospect of conviction.

3.29 Given the test for prosecution which applies, the extent to which a prosecutor makes an assessment of and takes into account the perceived credibility or reliability of witnesses can be a controversial aspect of any decision to prosecute.

3.30 Some may argue that where apparently credible witnesses conflict on the vital issues in any prosecution case, The CPS should “let the court decide”, whether or not the prosecutor objectively considers that there is a realistic prospect of conviction.

3.31 Witnesses who say contradictory things will not necessarily always be equally reliable or believable. And if Crown Prosecutors do not have enough information to assess whether a conviction is more likely than an acquittal, they ought to identify what else they need to know and ask for it, before taking a decision.

3.32 On the other hand, the differences in the evidence may not be material to the case the prosecution would be putting. They may be the kind of differences that are to be expected, for example, conflicts in eye witness evidence of fights, struggles, or any form of melee will very often differ on minor points, but may be consistent on the essentials.

3.33 Where witness statements are plausible on their face, and are not manifestly wrong according to other evidence, whether the evidence points towards or away from the guilt of an individual, The CPS considers that the prosecutor has to make some sort of assessment.

3.34 Aside from what can be derived from the transcripts of any inquest that has been held, prosecutors currently have no mechanism to test the reliability of witness evidence. On the other hand, in the other UK jurisdictions it is common practice for professional prosecutors or counsel to confer with, or precognose, a range of witnesses in at least some cases.

3.35 The problems of assessing the prospects of conviction can be exacerbated if some witnesses have relevant previous convictions or other characteristics that contrast their characters with those of police or prison officer witnesses. The evidence of people with previous convictions is not to be discarded purely for that reason. But a prosecutor will recognise the light in which such a person will be cast by a competent defence lawyer, and will be astute to seek supporting evidence where possible.

3.36 In cases where evidence of plausible witnesses conflicts on the essential planks of the prosecution case, and other evidence does not resolve that conflict or cannot be obtained, prosecutors have to make some assessment of whether there is a realistic prospect of conviction. It is the job of prosecutors to take difficult cases to trial. But if they prosecute weak cases, trial judges will have no hesitation in stopping the case and criticising the prosecution.

How do consultees consider that The CPS should approach the evidential test of whether there is sufficient evidence to prosecute, especially where there are material conflicts and/or weaknesses in the evidence?

Scientific Evidence

3.37 There are a number of instances when scientific evidence may appear contradictory. An example can be seen in relation to the cause of death. A post mortem may be carried out by more than one pathologist. The coroner, the family of the deceased, the potential defendant(s) and the relevant police authority may all instruct a pathologist to be present at a post mortem and each will form an opinion as to the cause of death.

3.38 Where there is no uncertainty in the opinion of the pathologists as to the cause of death, The CPS will rely upon that opinion. In some instances, however, the pathologists may state that the cause of death is undetermined; or, if there are several pathologists, each may come to a different conclusion as to the cause of death.

3.39 In some cases this kind of conflict is not significant. To take a hypothetical example, if the allegation is that the accused attacked the victim and both battered and stabbed him, it would not be material that one pathologist concluded that death was caused by the stab wounds alone, and the other that only the blows were to blame. In both cases, whatever the immediate cause of death in fact was, it would be attributable to the criminal actions of the accused. But it would be a material difference if, for example, one of the pathologists were to say that death was caused by disease and that the attack played no part. 3.40 Where there is a material disagreement of this kind, The CPS would normally seek further evidence to try to resolve it. At present The CPS may see some or all of the pathologists in consultation, or may seek fresh independent expert evidence.

3.41 If, having completed that exercise The CPS concludes that there is insufficient evidence to prove the cause of death, where this is relevant to establishing or excluding the criminal liability of an individual, the test for prosecution would not be met. There would be no realistic prospect of conviction.

Given that scientific evidence may be essential to establishing or excluding the criminal liability of an individual, what approach do consultees consider The CPS should take when considering and probing this kind of evidence?

Defences

3.42 The current practice of Crown Prosecutors in assessing the prospects of conviction is to have regard to any lines of defence that are clearly available to, or that have been indicated by, the suspect or defendant.

3.43 Crown Prosecutors would be expected to look for any available evidence that rebuts that defence as well as supports it. A mere assertion on the part of the accused or a witness which simply contradicts the prosecution case should not in itself necessarily be sufficient to undermine the case to the extent that it should not proceed.

3.44 Crown Prosecutors should not anticipate a line of defence in the absence of an indication on the papers. But they should consider whether there are further reasonable lines of inquiry that should be pursued which may strengthen or weaken the prosecution case.

Representations by or on behalf of the bereaved

3.45 It may be argued by some that prosecutors should receive representations from bereaved family members before taking prosecution decisions. So far as the evidence is concerned, relevant evidence from any source may be considered and passed to the police for further investigation as part of the prosecutor’s duty to keep the strength of the evidence under review. But what, if any, role is there for the family in seeking to persuade the prosecutor of a particular interpretation to be placed on that evidence? Is the legitimate role of the family to be confined to the public interest aspects of the decision? Consideration also needs to be given to the potential benefits for bereaved families in dealing with their loss if they are able to make representations. The pain and stress such families suffer can only be increased if they feel deprived of any route to make their views known.

3.46 Sir Robin Auld set out reasons why, in his view, the victim should not participate in prosecution decision-making in his Review of the Criminal Courts published in October 2001 on pages 499-500. The question whether the Police Complaints Authority has an obligation to disclose evidence gathered during an investigation into a complaint against a police officer to the complainant or, if deceased, to his or her next of kin while that investigation is still continuing, was recently considered by the Court of Appeal, which considered the legitimate role of the complainant in a PCA investigation. In R (on the application of Anthony Lloyd Green v the PCA, the Secretary of State for the Home Department, the Chief Constable of South Yorkshire Police, Liberty, The CPS and another [2002] EWCA 389 at paragraph 55 of the judgment, the Simon Brown J held:

“I have reached the clear conclusion that such disclosure is not required. Least of all is it required to be made to eyewitness complainants whose evidence may be contaminated, and where, therefore, disclosure would risk hindering or frustrating the very purpose of the investigation, the bringing to book of police officers who properly ought to be prosecuted or disciplined. A complainant’s legitimate interests – which…..remain undefined by the ECtHR – are, in my judgement appropriately and adequately safeguarded by his right to a thorough and independent investigation, his right to contribute evidence where he can, his right to be kept informed of the progress of the investigation……and his right to be given reasoned conclusions on completion. What, however, he has no right to do is to participate in the investigation itself for all the world as if he were supervising the PCA as they themselves supervise the investigating police force.”

3.47 The need to ensure that prosecutors are not placed under improper pressure to reach a particular decision is not unimportant. As Turner J said in R v DPP ex parte Karen Stacey, October 20, 1999 (unreported):

“While the Code [for Crown Prosecutors] requires that consideration be given to the interests of victims (and their relatives), it also and importantly requires that an objective evaluation be made of the evidence and the prospects of success in contemplated criminal proceedings free of any (improper) pressure.”

3.48 In that case Turner J had found that relentless pressure had been brought to bear on the prosecuting authority by solicitors acting on behalf of the relatives of the deceased. The case provided an illustration of the way in which an individual, or group of individuals, with a particular interest can bring pressure to bear on a public body which has wider interests to consider, and which may militate against the course of action which the group wishes to see adopted.

Given that prosecutors have to assess whether there is a realistic prospect of conviction, what approach do consultees consider should be taken by The CPS when considering:

• questions of credibility and reliability
• uncertain or conflicting scientific evidence
• lines of defence?

Do consultees believe that Crown Prosecutors currently adopt the right general approach to these questions? Please give your reasons. What is the proper role of bereaved families and those representing them in influencing the decision to prosecute?

WHO TAKES THE DECISION TO PROSECUTE IN DEATH IN CUSTODY CASES?

4.1 Following His Honour Gerald Butler QC’s report, all death in custody cases are dealt with by lawyers of at least Senior Civil Service level (formerly Grade 5 or above), working in what is now the Casework Directorate of The Crown Prosecution Service, a headquarters Directorate. These lawyers are among the most senior and experienced lawyers in The CPS.

4.2 Following the review by HH Gerald Butler QC, a formal training programme was instituted in the Casework Directorate for all staff covering all aspects of the work of the Directorate. In addition there are desktop instructions and a formal Casework Directorate manual. A circular on homicide, drafted by members of the Casework Directorate who take decisions in death in custody cases, which was agreed with Senior Treasury Counsel and Leading Counsel, has been made available to every member of The CPS. The training package on homicide which now forms the basis of all CPS training on homicide, was drafted by one of the SCS members of the Casework Directorate. The SCS members regularly discuss legal issues amongst themselves and with senior counsel, as well as keeping themselves up to date generally, in the normal way.

4.3 The CPS defines those cases which should be regarded as a death in custody for the purpose of following their internal decision making process as deaths of:

• Those under arrest or detained under s.118 (2) of the Police and Criminal Evidence Act 1984.
• Those detained by police under the Mental Health Act 1983.
• Those detained under the Immigration Act 1971.
• Those detained under the Imprisonment (Temporary Provisions) Act 1980.
• Those who die in hospital following a detention under any of these categories. • Those held in prison or other form of State custody establishment where there is a suspicion that the death has been caused by prison officers or where it is suspected that a breach of a duty of care by prison officers has been a cause of death
• Those who are shot and killed by police.

4.4 The Home Office adopts a wider definition aimed at providing a comprehensive set of information about deaths all in one place and making clear distinctions between different categories of deaths taking place during or following contact with the police. That definition goes beyond deaths in custody in the strict sense and encompasses cases where the death may have other direct or indirect links to the police. It is broken down as follows:

• Fatal road traffic incidents involving the police;
• Fatal shooting incidents involving the police;
• Deaths in or following custody; and
• Deaths during or following other types of contact with the police.

4.5 There is an issue as to whether The CPS definition referred to at paragraph 5.3 should be extended at all to encompass s more of the deaths covered by the Home Office definition

4.6 The definition used by The CPS is important because it affects the number of cases that must be considered using the arrangements for decision–making adopted following the recommendations of His Honour Gerald Butler QC. These are as follows:

• decisions whether to prosecute (both before and after any inquest) are taken by one of the four SCS members of the Casework Directorate (three of whom are based in London and one in York); or, exceptionally, by the Director, Casework or the Director of Public Prosecutions. Since the Butler arrangements were put in place, the Director, Casework has taken one such decision, but the DPP has not personally taken a prosecution decision in such a case. Three of the four SCS lawyers have management responsibilities in addition to their casework decisionmaking role;
• if the reviewing lawyer considers that a prosecution is justified, the police are advised to commence proceedings;
• if the reviewing lawyer considers that there is insufficient evidence to justify bringing a prosecution, unless it is plain beyond any reasonable doubt that there is no realistic prospect of a conviction (and HH Gerald Butler QC himself saw a number of cases falling into that category), the advice of Senior Treasury Counsel or of leading counsel (a QC) is sought;
• if counsel also advises that there is insufficient evidence, the reviewing lawyer takes a final decision and the interested parties are informed.
• if, on the other hand, counsel advises that there is sufficient evidence to prosecute, the reviewing lawyer must reconsider his or her original conclusions in the light of that advice. If the advice is accepted (which would normally be the case), a prosecution would follow. If not, the case would be reviewed afresh by the Director, Casework or in an exceptional case by the DPP.

4.7 Senior Treasury Counsel are independent barristers in private practice who are among the most senior and experienced members of a panel of counsel based at the Central Criminal Court in London (the Old Bailey), selected for their skills as criminal lawyers and as advocates. This panel is routinely instructed to act for the prosecution on behalf of The CPS and to advise in the most serious and important prosecutions tried in London. There are currently eight Senior Treasury Counsel.

4.8 Where leading counsel is asked to advise, the reviewing lawyer selects a QC in whose skills, judgement and experience he or she has complete confidence; and who is able to advise in the time available. The pool of QCs is much wider than the pool of Senior Treasury Counsel.

4.9 It can be seen from this summary that under the current arrangements, the pool of senior CPS lawyers who take decisions to prosecute in this type of case is very small. The definition of the cases which must follow this procedure within The CPS could therefore have a real impact on whether the arrangements can be maintained as they are, or whether they may need to be modified in some way without compromising the underlying intention of HH Gerald Butler QC’s recommendations.

Consultees are asked to comment on the following:

• Do consultees have any observations on the definition adopted by The CPS?
• Should the set of cases covered by the special CPS decision-making procedures be extended to include more of the deaths recorded by the Home Office?
• Is it essential that the Butler arrangements are maintained, in your view, even if there were to be a significant increase in the number of cases considered by that route?
• What should be the role of counsel?
• To what extent, if at all, should The CPS take account of representations made by others as to the identity of counsel to be instructed to advise them?
• What training should be made available to senior lawyers undertaking the decision making in these cases?
• What should be the personal role of the Director of Public Prosecutions?

ACCOUNTABILITY AND TRANSPARENCY

5.1 This review is not intended to look at the full spread of mechanisms by which the accountability of The Crown Prosecution Service is secured, but to analyse two important aspects of it in the context of death in custody cases.

5.2 Accountability means being responsible, or answerable, for an action or conduct to an appropriate authority. The superintendence of the Attorney General means that the Director is accountable to the Law Officers. Through the relationship of superintendence by the Attorney General the Director is accountable to Parliament and to the public.

5.3 The extent to which Parliament and its Committees themselves are entitled to scrutinise and receive information about investigation evidence, or to be given detailed reasons for individual decisions, is extremely limited. Select Committees have no power to scrutinise individual cases (Standing Orders relating to Public Business 130 30 June 1992).

5.4 The CPS prosecutes on behalf of the public at large and not in the interests of an individual. But as the Code for Crown Prosecutors makes clear, Crown Prosecutors should always take account of the consequences for the victim of the decision whether to prosecute and any views expressed by the victim or the victim’s family.

5.5 The concept of trust is central to the exercise of the authority to prosecute and not to prosecute. Accountability means little in the absence of some form of obligation to report, answer, explain and/or give reasons. But accountability becomes extremely complex and difficult once it comes to the giving of reasons, access to information and when dealing with competing interests.

5.6 The aspects of accountability that this review would like to focus on in particular, therefore, are:
(1) the extent to which The Crown Prosecution Service should provide information and explanations of its decisions to the families of people who have died in custody; and
(2) the role that consultees see for the Law Officers in securing the accuracy of individual case decisions.

5.7 As this paper has already pointed out, the ability to challenge a decision not to prosecute is more limited than the ability for an accused to challenge a decision to prosecute. So in practice, the principal focus of the aspect of accountability that involves giving explanations is on decisions not to prosecute.

Giving reasons for prosecution decisions

5.8 In the past, the DPP has adopted a reserved approach to giving reasons why a decision not to prosecute has been reached. That approach has changed in recent times as part of a wider agenda of giving more respect to the interests of victims in the criminal justice process.

5.9 It is worth exploring the kinds of considerations that affect the extent to which the detail of reasons can be given.

5.10 In 1981, the report of the Royal Commission on Criminal Procedure, in its consideration of the proper accountability of the proposed national prosecuting authority, said: “The decision whether or not to prosecute or not, of its very nature, can involve the interests and reputations of the witnesses, of the victim and the accused or suspect. Publicly calling into question a decision not to prosecute could amount to a trial of the suspect without safeguards which criminal proceedings are designed to provide. Similarly, questioning the original decision to prosecute when a person has been acquitted could amount to a retrial”.

5.11 First, if detailed reasons are given in one or more cases, they may require to be given in all. Otherwise wrong conclusions may well be drawn in relation to those cases where reasons are refused, resulting either in unjust implications regarding the guilt of individuals or suspicions of mal-practice, or both.

5.12 Secondly, if reasons are given in all cases and if they consist of something more than generalities, unjust consequences are even more obvious and likely. While in a minority of cases the reasons may result in no damage to a reputation or other injustice to an individual, in the majority, such a result would be difficult or impossible to avoid.

5.13 Thirdly, the reason for no prosecution is often unrelated to any assessment of the issue of guilt or innocence. It may consist of the unavailability of some evidence, perhaps purely technical but nevertheless essential, to establish the case. In other cases, it may be the sudden death or unavailability of an essential witness or it may arise out of intimidation. There is a risk that to indicate that such a factor was the sole reason for not prosecuting could amount to conviction without trial in the public estimation and deprive the individual concerned of the protection afforded by the impartial and careful analytical examination in open court of the case against him which the judicial system affords.

5.14 Fourthly, in other cases, the publication of the particular reasons for not prosecuting could cause unnecessary pain and damage to persons other than the suspect as, for example, where the decision is determined by an assessment of the credibility or mental condition of the victim or some other witness.

5.15 Fifthly, there is a further and substantial category of cases in which decisions not to prosecute are based on the Director’s assessment of the public interest. The Director is the guardian of the public interest in this sphere. Decisions made on an assessment of the public interest may include cases where the sole reason for non-prosecution was the age or mental or physical health of the suspect. In other cases there may be considerations of national security, or threat to the safety of individuals. In cases of this nature, the publication of reasons would not be appropriate and could result in unjust implications being reached regarding the guilt of individuals or lead to the publication of information held in confidence or jeopardise the safety of individuals or threaten national security.

Current practice in CPS communications with victims or their families

5.16 The CPS policy on victims and witnesses has been developed over a number of years. For some considerable time now in cases involving a death where a prosecutor has concluded that there should not be a prosecution, he or she will meet the family of the deceased on request, to explain the decision. Where there has been a death of a person in the custody of the state and an inquest jury has returned a verdict that the deceased was unlawfully killed, there is a reasonable expectation that there would be a prosecution of any person who could be identified as responsible. If the Crown Prosecutor concludes that there is insufficient evidence to prosecute he will give reasons for that decision. This follows the approach identified in R v Manning and Melbourne (2000) 3 WLR 463.

5.17 The CPS has, over the past eighteen months, introduced its Direct Communications with Victims initiative, which involves a wider category of cases than those where a person has died. Where a charge is discontinued, or substantially altered, the prosecutor in the case will write to the victim and inform him or her of the decision and the reasons for the decision. In cases involving death, sexual offences, child abuse or racial aggravation, the prosecutor will offer the victim a meeting to discuss the reasons for discontinuing the case or substantially altering the charges. The factors affecting the extent of the detail that the prosecutor can go into when giving reasons is addressed In more detail below; but as the then Lord Chief Justice stated in R v DPP ex parte Manning and Melbourne, “the Director will reach his decision as to the provision of reasons and their extent, having weighed the applicability of public interest considerations material to the particular facts and circumstances of each individual case.”

5.18 The Direct Communication with Victims initiative has been piloted in a number of Areas. Rollout of the programme has commenced and it is expected to be implemented nation-wide by October 2002.

5.19 While recognising that victims or their families should be informed of the decision in these cases, The CPS has to take a number of considerations into account when doing so. It has already been mentioned that The CPS is an independent prosecuting authority, which prosecutes on behalf of the public and does not represent any individuals in its prosecutions. In addition to that, The CPS must consider the rights of others involved in the prosecution process. Allowing for these constraints, the acute emotional impact on the relatives of those who die in custody means that there is particular importance in providing such families with the clearest and fullest information possible and at the earliest possible time.

5.20 The issue of confidentiality is important and is underpinned by Article 8 of the European Convention on Human Rights (ECHR). Material supplied to The CPS for the consideration of a possible prosecution must be treated as having been supplied only for that statutory purpose. Before any further disclosure of that information, the following considerations must be taken into account:
a) the person requesting the information must have a genuine interest – in cases involving a death in custody, the families will have a genuine interest;
b) the proceedings to which the material relates should be completed – even where proceedings have been discontinued or concluded they can be restarted by the prosecution or appealed by the defence and re-tried. The CPS has to ensure that explanations do not prejudice the trial process or ongoing police enquiries;
c) the material provided must not be sensitive – material provided to The CPS may be sensitive and subject to public interest immunity (which means that it is not in the public interest to disclose that material). If that is the case, legally, The CPS may not be entitled to pass that sensitive information to the victim’s family;
d) before disclosing the contents of a witness statement, The CPS must normally obtain the permission of the maker of the statement;
e) personal information relating to a witness in the case should only be disclosed in exceptional circumstances – the protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8, and interference with Article 8 can only be justified by an overriding requirement in the public interest: Z v Finland [1997] 25 E.H.R.R.371;
f) Article 8 has to be balanced against the right to receive information. This latter right may be restricted in order to protect the reputation or rights of others, or to prevent the disclosure of information obtained in confidence; g) The CPS has to be aware of Data Protection Act implications when discussing any of its decisions;
h) The CPS must be careful when explaining its decisions to avoid defaming any individuals;
i) both the domestic law in this country and Article 6 of the ECHR provide for the presumption of innocence and the right to a fair trail – The CPS has to ensure that its explanations to victims and their families and meetings with them do not prejudice any possible future trial (see also (b) above) or other proceedings which are continuing;
j) the decision may be judicially reviewed – while The CPS has to ensure that it explains decisions as fully as it can to victims and their families, it has to be aware that the decision may be judicially reviewed. Accordingly, the possibility for misinterpretation and misunderstanding must be kept to a minimum.

5.21 Within these considerations, it is CPS policy to provide as much information to a victim and their family about a casework decision as is reasonable and practicable. Consultees are asked to consider:

• whether current CPS policy on giving reasons is satisfactory and if not, in what respect?
• when reasons are given, are they explained clearly?
• how can The CPS best balance the need to ensure that their reasons can withstand the searching scrutiny of the Courts on judicial review, in the course of which the prosecutor may be expected to demonstrate by some contemporaneous document that he has considered any number of questions that the court may raise; the need to convey in direct and understandable language the broad basis for the decision; and the need to take account of the rights and interests of others whose reputations and interests may be affected by the nature of the reasons given?
• what is consultees’ experience of the reasons given by The CPS for their decisions?
• how do those representing suspects view the impact of the pressures placed on The CPS by families and their representatives before or after it takes a decision not to prosecute?
• how well does The CPS handle communications with families and if there is room for improvements, what would these be and why? Disclosure of materials on which the decision not to prosecute was based
• 5.22 Save where permission for judicial review has been granted, it is not the usual practice of The CPS to disclose material upon which a decision not to prosecute has been based, although such disclosure may be provided when the relevant material is already in the public domain, or the consent of the maker of any relevant statement has been obtained and a valid reason has been provided for the request for disclosure. This practice is in accordance with the decision in R v Hallas 87 Cr. App. R 340, DC.

5.23 In the more recent decision in Taylor v Serious Fraud Office and others [1998] 4 All E R 801 the House of Lords explained why those who provide material to the prosecutor are entitled to confidentiality in respect of such of that material as is not in the public domain. The use to which material disclosed by The CPS may be put can be controlled when it is supplied to a defendant in criminal proceedings (either under the common law or under section 17 of the Criminal Procedure and Investigations Act 1996), but no control would exist in respect of disclosure given to any other person outside the context of a legal requirement in existing court proceedings.

5.24 Unlike a situation in which a challenge is made to an adjudicative decision made in respect of a dispute between parties, or in respect of a claim for some benefit made by the Applicant, bereaved families will often not be aware of the full material on which the decision not to prosecute was based, nor the full reasons for the decision.

The Role of the Law Officers

5.25 Sir John Morris QC most recently expressed the traditional role of the Attorney General in the superintending function during an adjournment debate on 5 March 1998. He quoted the explanation of the power of superintendence given by Sir Michael Havers QC in 1979:

“My responsibility for superintendence of the duties of the Director does not require me to exercise day-to-day control and specific approval of every decision he takes. The Director makes many decisions in the course of his duties which he does not refer to me but, nevertheless, I am still responsible for his actions in the sense that I am answerable in the House for what he does. Superintendence means that I must have regard to the overall prosecution policy which he pursues. My relationship with him is such that I require to be told in advance of the major, difficult and, from the public interest point of view, the more important matters so that, should the need arise, I am in the position to exercise my power of direction.”

5.26 Sir John then added:

“My primary responsibility therefore, is to oversee the effective and efficient administration of the prosecution authorities that I superintend. I cannot and do not hold myself out as responsible for the day-to-day conduct of each and every prosecution, although these constitutional niceties explain to the House how I approach my responsibilities”.

Consultees are asked to consider:

• What do they see as the meaning of The CPS’s accountability to the Law Officers in the context of casework decision-making? What contribution does thismake to public confidence?

ANNEX 1

DEATHS IN CUSTODY PROJECT: CODE FOR CROWN PROSECUTORS – THE EVIDENTIAL TEST

Background

1. The Crown Prosecution Service has in the past considered whether a separate and lower evidential test should be applied to prosecutions involving ‘deaths in custody’, and any other identified category of case, to meet a perceived concern that some cases should be prosecuted because of an enhanced public interest in having a public trial.

2. This would involve The Crown Prosecution Service (CPS) in prosecuting cases that they consider have no realistic prospect of ending in a conviction.

3. The evidential test is set out in the current version of the Code (at paragraphs 5.1 and 5.2) in the following terms:

“Crown prosecutors must be satisfied that there is enough evidence to provide a ‘realistic prospect of a conviction’ against each defendant on each charge. They must consider what the defence case may be, and how that is likely to affect the prosecution case. A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a separate test from the one that the criminal courts themselves must apply. A jury or magistrates’ court should only convict if satisfied so that it is sure of a defendant’s guilt.”

4. All cases are reviewed in accordance with this evidential test, irrespective of the nature or seriousness of the offence in question. Once the evidential test is passed, prosecutors move on to consider the public interest test.

5. This note will

• look briefly at the history of the Code and the extent to which such issues have already been considered during its development;
• present in outline the arguments that have shaped the current evidential test.

6. Since The CPS was created in 1986, the Director of Public Prosecutions has had a statutory duty to issue a Code for Crown Prosecutors, giving guidance on the general principles to be applied when making decisions about prosecutions (Section 10 of the Prosecution of Offences Act 1985).

7. Four editions of the Code for Crown Prosecutors (the Code) have been published by successive Directors:

• June 1986 – Sir Thomas Hetherington QC
• January 1992 – Allan Green QC
• June 1994 – Barbara Mills QC
• October 200 – David Calvert-Smith QC

8. First Edition: Guidance issued prior to 1986 required prosecutors, when considering the evidence in a case, to assess whether there was a “reasonable” prospect of conviction. In introducing the Code, The CPS also introduced the term “realistic” prospect of conviction. This was not meant to denote that a different standard of evidence was required: it was simply felt that this term better conveyed the essential idea of an independent and objective assessment.

9. The first edition of the Code also made it clear that the evidential and public interest tests were to be conducted sequentially. It was only once a case had passed the evidential test at the prescribed standard that the public interest in bringing a prosecution could be considered.

10. Second Edition: The wording of the evidential test, as well as that of the public interest test and their respective order of application, did not change when the 1992 edition was produced. This revision was limited to making allowance for some recent statutory and procedural developments (including the introduction of a statutory offence of conspiracy to defraud and the 1990 Practice Note on Mode of Trial Guidelines).

11. Third Edition: The third edition of the Code in 1994, however, was produced following a major review of its entire basis and contents. A consultation exercise was carried out involving both internal and external consultees. The latter included other prosecuting authorities, legal practitioners and academics.

12. At the time of the review, The CPS had been the subject of criticism for its perceived propensity to discontinue cases. The standard and wording of the evidential test received detailed scrutiny over a period of months. Nevertheless, those consulted were overwhelmingly of the view that the standard should not be lowered, but that the wording of the test should lead the prosecutor to make an expressly objective assessment against a consistent and clearly stated standard.

13. For this purpose it was decided to retain the term “realistic prospect of conviction” but to provide an explanation of what this meant. The following explanation, which remains part of the evidential test in the current Code, was introduced:

“A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged.”

14. As part of the Code review process, specific consideration was also given to the proposition that there should be scope to allow cases to go before the courts where the evidence did not provide a realistic prospect of conviction in the opinion of the prosecutor, yet where the public interest may be in favour of a public airing of the issues.

15. Again, those consulted were firmly of the view that no cases should be prosecuted where the evidence did not satisfy the Code’s evidential test. Also, that the test should be constant: that it should not be varied according to the seriousness or notoriety of the case.

16. Current Edition: In 2000 a further extensive review of the Code was carried out, which took 11 months to complete. There were many drivers for the project, including internal CPS structural changes, an increased emphasis on the rights and interests of victims, and the commencement of the main provisions of the Human Rights Act in October 2000. The review was in no way driven by a perceived need to revise the Code tests, although it was made clear that every aspect of the Code was open for comment and reconsideration.

17. An extensive programme of public consultation was carried out at a national and local level. Those consulted included the judiciary, the police, the legal profession, academics, domestic and foreign government departments and other prosecuting authorities, a wide selection of interest groups and CPS staff. The views of the general public were also sought via the media, the Internet and through local initiatives.

18. As part of the consultation process a seminar was held under the chairmanship of the Director of Public Prosecutions, which specifically explored Code test-related issues. These included whether the evidential test was set at the correct level, to what extent the public interest could be distinguished from mediaexpressed public opinion, and whether the Code tests should continue to be applied in the sequential order that had been prescribed since their introduction.

19. As expected, the consultation process produced responses that varied across the entire spectrum of opinion on many issues. Nevertheless, there was no serious body of opinion that argued for changing the Code tests in any way.

20. The wisdom of this approach was also confirmed by Treasury Counsel who was asked to advise on potential changes to the Code. As a consequence, the evidential test remained unchanged. Reasoning behind the current evidential test

21. The main questions posed and arguments considered during the development of the Code, in relation to the evidential test, are as follows: Should the evidential test be based on establishing a ’realistic prospect of conviction’?

22. During the consultation processes described, different commentators called respectively for introducing both a higher standard of evidential test, such as that imposed on the jury, and a lower standard, such as a prima facie case.

23. The arguments for and against introducing a higher test are not relevant to the issue to be addressed in this paper. The suggestion itself does, however, illustrate the difficulty in satisfying all elements of public and professional opinion when formulating the Code tests.

Lower evidential standard – advantages

24. Introducing a lower standard of evidential test would mean that prosecutors could avoid the media and public criticism that results from difficult and unpopular decisions not to run serious or notorious cases. It would allow issues to be aired in a public trial, and leave the difficult and unpopular decisions to be made by the courts. It could also mean that some guilty people who currently escape prosecution would be prosecuted and might possibly be convicted.

Lower evidential standard - disadvantages

25. These purported benefits would, however, come at a high cost. A lower evidential test threshold would inevitably mean that court-directed acquittals would rise substantially. This would bring with it an associated cost in terms of the effect on both those accused and acquitted of crime, and those victims whose expectations have been raised and/or who experience the ordeal of giving evidence, only to be disappointed.

26. An amendment to the evidential test, which applied only to cases involving deaths in custody, would not involve a major increase in the number of cases to be prosecuted overall. However, once such a change is made for this limited category of cases it is difficult to see how representations to extend the principle to other types of case or offence could be resisted. The cost to the public purse would therefore almost inevitably increase, as would delay caused by preparing and running trials that had little or no prospect of a conviction.

27. Any lowering of the evidential test would involve an increased risk that the innocent would be prosecuted and convicted. It was to address exactly these issues that The CPS was created. General arguments against change

28. The basis of the evidential test has been left unchanged since The CPS was set up, although greater explanation of it has been imported into successive versions of the Code. It is familiar to prosecutors, the legal profession and, to some extent, the public. Although its application has been challenged, the evidential test itself has never been the subject of judicial review.

29. Prosecutors are criticised for continuing prosecutions that result in court directed or jury acquittals, as well as for declining to prosecute cases. This fact alone suggests that we have the balance right in general terms. This is further supported by instances of failed private prosecutions that have been instituted following CPS decisions not to prosecute due to insufficiency of evidence. The failed private prosecution in 1996 against those accused of the murder of Stephen Lawrence is perhaps the most high profile of such cases.

Should there be different standards of evidential test for different types of case, depending upon the public interest involved in pursuing a matter to trial?

30. The points made in paragraphs 24 to 29 above apply equally to this question.

31. In addition, although the role of the Crown Prosecutor involves exercising considerable discretion, one of the main functions of the Code is to promote consistency and fairness within the review process. Both would be undermined by introducing a variable evidential test. Consistency

32. Consistency of approach brings clarity. This is essential to the role of the prosecutor who must apply the Code tests correctly. It is also important for those suspected of criminal offences, as well as for the general public, to be clear about when and on what basis a person may be prosecuted. The greater the complexity of the evidential test the less easy to apply, and the less transparent it becomes. Fairness

33. Consistency also denotes fairness both to those accused of offences and to those who are the victims. It would be unjust to expose a person to a higher likelihood of prosecution based on the nature of the offence he or she was charged with. It is already at least arguable that the level of disquiet that may be felt by a jury in relation to certain types of serious offence may create a propensity to convict on less evidence than in other offences. It is in such serious cases that an accused person is in most need of a fair system to safeguard his rights.

34. Should a system be introduced whereby certain offences become more likely to be tried than they previously were, this could also engender an acute sense of injustice amongst the victims of similar crimes whose cases have not been prosecuted.

35. It is also difficult to see on what basis the relevant category or type of case or offence could be selected for this treatment without invoking highly emotive criticism. For example, it is difficult to distinguish between the seriousness of a case that involves a death in custody, and that which involves the death of a child.

Independence

36. Another central principle of the Code that would be undermined by allowing assessments of the public interest to influence evidential sufficiency decisions is the independence of our review process. The Code states:

“Crown Prosecutors must be fair, independent and objective. They must not let any personal views about ethnic or national origin, sex, religious beliefs, political views or the sexual orientation of the suspect, victim or witness influence their decisions. They must not be affected by improper or undue pressure from any source.”

37. If a lower evidential test could be employed where The CPS could be persuaded that the public interest required it, this would open the Service and the individual prosecutors to exactly the kind of pressure that the Code insists they must be impervious to. 38. For all of these reasons each review of the Code has left the basis of the evidential test unchanged.

Conclusions

39. If a separate and lower evidential test were to be applied to any category of case, this would necessitate a further revision of the Code. In the absence of this, any such decision would be judicially reviewable. 4

40. The formulation of the Code tests, and in particular the evidential test, has been the subject of thorough debate and the widest possible public and professional consultation process. The latest detailed consideration of the topic was completed only 15 months ago.

41. The CPS view is that the standard of the evidential test should remain unchanged, and should be applied consistently to all cases.

Murder

Subject to three statutory exceptions, which will not be dealt with in this paper, murder is committed where a person of sound mind and discretion (ie sane) unlawfully kills a human being with intent to kill or cause grievous bodily harm.

Involuntary manslaughter

There are two types of involuntary manslaughter; that caused by gross negligence and that caused by an unlawful act. For gross negligence, the prosecution must prove four elements: that the defendant owed a duty of care to the deceased; that he breached that duty; that the breach was a cause of the death and finally that the breach is to be characterised as gross negligence and therefore a crime - R v Adomako (1995) 1 AC 171.

Duty of Care

At common law a person owes a duty of care to all those who can reasonably be foreseen will be affected by his negligent actions. If that negligent action leads to a death and the negligence is considered gross then he may be prosecuted for manslaughter.

Where a person fails to act and a person dies who would otherwise live, before there can be a prosecution for manslaughter, the prosecution must show that there was a pre-existing duty of care owed by the defendant to the victim. This might arise from the nature of the defendant’s job or by an acceptance of a duty of care.

Where a person dies in custody, it is necessary to distinguish between the organisation and the individual. The police force and the prison service as organisations, owe a duty of care to all those detained, but it does not follow that all police officers in the police station or prison officers in the relevant prison, necessarily owe a personal duty of care to the detainee. For example, their paths may not cross at all, they may merely meet in passing or the officers may have other duties. The arresting officers and, where the detainee is in a police station, the custody officer, owe a specific duty of care to the detainee. A doctor who attends to treat a prisoner will also owe a duty of care. Other individuals may owe a duty of care if they have accepted a duty towards the detainee but there is no general duty of care towards strangers.

The Breach of the Duty

The standard of care which must be provided by those with responsibility for an arrested person, is to take reasonable care of the detainee. Where a person is in police custody, the duties of the custody officer are set out in Code C of the Police and Criminal Evidence Act 1984. It may be helpful to set out the relevant section which applies where a detainee appears to need medical assistance.

Under Code C paragraph 9.2: ‘the custody officer must immediately call the police surgeon (or in urgent cases, - for example, where a person does not show signs of sensibility or awareness, - must send the person to hospital or call the nearest available medical practitioner) if a person brought to a police station or already detained there:

• appears to be suffering from physical illness or a mental disorder; or
• is injured; or
• fails to respond normally to questions or conversations (other than through drunkenness alone); or
• otherwise appears to need medical attention.

Causation

One of the elements which must be proved in any homicide is that the action of the suspect is a cause of the death. The act need not be the only or even the main cause of death as long as it is a substantial cause of the death in the sense that it is more than minimal. In some instances the cause of death can be ascertained reasonably clearly (eg a person shot dead) but in others, it is not so easy to identify. Death may not be an instant event, more a series of processes where death is the final result. In such circumstances, pathologists may not show an individual cause of death but may describe the cause as ‘multifactorial.’ Where this occurs, the prosecution must be able to show that one of those causes (as long as it can properly be described as ‘more than minimal’) was the result of the actions or inaction of an identifiable person.

In any case, but particularly one involving a death in custody, a number of the parties involved may instruct separate pathologists to provide a view on the cause of death. Their opinions may differ on the cause of death. Some may provide the necessary causal link to the action/inaction of the suspect, but others may identify a factor as the cause of death which does not incriminate the suspect. Other pathologists may simply be unable to provide an opinion on whether the act or failure to act was a cause of death, albeit stating that it may have been.

The courts have made it clear that ‘scientific’1 proof of the cause of death is not required. However in any case of homicide, the Crown must still be in a position to prove, beyond reasonable doubt, that the accused caused the death of the deceased.

Grossly Negligent

If the first three elements are satisfied, the final question is whether the conduct is criminal. In Adomako Lord Mackay said: ‘The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.’

An issue which arises from this observation is whether The CPS must prosecute if the first three elements are satisfied or whether the Code for Crown Prosecutors requires the reviewing lawyer to consider whether a reasonable jury, properly directed, is more likely than not to conclude that the accused was grossly negligent. This question would arise in all cases of gross negligence manslaughter, not just those relating to police officers. Indeed, in the majority of cases prosecuted by The CPS, the reviewing lawyer has to make an assessment of the likely impact of the evidence on a jury, to determine if there is a realistic prospect of a conviction.

Unlawful Act Manslaughter

This occurs where a person commits an unlawful act as a result of which a person dies and where a reasonable person would foresee that there was a risk of some physical harm. It is no defence that the accused did not foresee or intend that death would result.

The mens rea, or mental element, required is that appropriate to the unlawful act in question. It is therefore not necessary to show that the defendant knew that the act was unlawful or dangerous.

Self-defence

Self-defence is a complete defence to a charge of homicide or any other battery. If a person honestly believes that he (or another) is, or is about to be, attacked, he may take proportionate action to defend himself or that other person. The law accepts that in determining if a person has only taken such steps as were reasonably necessary in self-defence, he cannot weigh to a nicety the exact measure of his 1 Perhaps more accurately described as ‘mathematical proof’ ie beyond any doubt necessary defensive action. If there is some evidence of self-defence, even if it is not raised by the defendant (for example the defendant might rely on an alibi saying that he was elsewhere), the judge must still direct the jury that it is for the prosecution to prove, beyond reasonable doubt, that he did not act in self-defence.

Misconduct in a public office

This is a common-law offence and is committed by a person who holds a public office and exercises a deliberate abuse of power otherwise than in an honest attempt to perform the relevant duty. The prosecution must show that the defendant acted wilfully: mere inadvertence which results in an act being performed badly, or not performed at all, is not sufficient to make out the offence.