The Crown Prosecution Service (CPS) was established under the Prosecution of Offences Act 1985 ‘as the principal prosecuting agency’ in England and Wales that take over cases which the police had decided to prosecute. The criminal justice Act 2003 transferred most of the charging power from the police to CPS, giving the impression of a public service that counterbalance the increased police force while delivering justice by working independently of them. However, since the inception of CPS, there are mounting criticisms that it is bureaucratic, ineffective, working too close to the police.
The main questions I will address in this paper are the use of discretionary power and the failure to fulfill its function as an independent body from the police. In addition, I will also assess the different approaches adopted by non-police organizations that conduct prosecutions. However, before I do so, it is necessary to observe that the concept of ‘criminal justice’ differs from person to person. A distinction must be drawn between procedural justice and justice in a socio-political context.
Taking this into account I will use the different paradigms of criminal justice, from Herbert Packer’s due process and crime control models to victim’s standpoint, in order to gain a holistic view to see the extent of prosecution agencies achieving criminal justice in the England and Wales. As the question suggests, there is no universal definition of ‘criminal justice’ exists. Different models are essentially different perspectives provided to assess criminal justice in terms of some general characteristics and principles.
INTRODUCTION The criminal justice system is a network of agencies that responds to crime, including police, courts and prisons. It has come a long way since the medieval period where torture was commonplace in the pursuit of justice. It is a well thought out system, but like other organizations, it has flaws. One of its major flaws is discrimination, on the basis of ethnicity, gender and class. In ...
Understanding this, I will first look at what ‘justice’ is through the due process lens. Herbert Packer derived this model from the ideas inherent in rule of law which stresses the importance of formal structure of law and procedure safeguards (Packer, 1968: 2).
Three main values can be gleaned from the due process model. The first and arguably the most crucial one is the concept of individual primacy over the interest of the state, and thus the complementary need for limits on official power (Young, 2010: 23).
The concept of the ‘presumption of innocence’ is based upon this idea to ensure a strict adherence to procedures in conducting a fair and unbiased trial. So a person is to be held guilty if and only if these factual determinations are made in accordance with procedures by authorities acting within the competences dully allocated to them (Packer, 1968: 8).
The second value is the ‘ideal of equality’ between parties. It holds that everyone should have same resources as to permit them to exploit all its defensive possibilities irrespective of their social or financial standing (Packer, 1968: 10).
Lastly, the due process casts a skeptical eye over the morality and utility of the criminal sanction, especially when taking into account the fact that the sanction is used primarily against the psychology and economically impaired (Packer, 1968: 10).
Therefore, the central idea of the due process model is to prioritise the protection of civil liberties as an end itself. In addition, the passing of the Human Rights Act 1998 (HRA) reflects concerns of Parliament to give more protections to fundamental human rights, hence the English criminal justice is arguably characterized as one which emphasizes due process safeguards.
However, in looking at the prosecution policies, it is difficult to see any evidence of due process. First, the supposed limits on their discretionary powers are absent at the pre-charge stage. The Code for Crown Prosecutors provides that the prosecutor has to apply a ‘twin tests’ in deciding whether to prosecute or not; the first is evidential test that a prosecution should only be introduced and continued with only if there is a ‘realistic chance of conviction’. If the first test is passed, then the CPS proceeds to decide whether that a prosecution would be in the public interest.
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But as a result of ‘opportunity system’, the prosecution discretion in Britain is not closely controlled. There is no duty to give specific reasons for deciding or to disclose the evidence on which a decision is based. Thus, the Director of Public Prosecution (DPP) Keir Starmer (2009) identified that ‘there may have bad decisions hidden under the respectable cloak of discretion’. In nearly 370,000 cases given to the CPS for pre-charge decisions, approximately one-quarter (24%) resulted in no further action (NFA) in 2011/2012, of which two-thirds were dropped on evidential insufficiency grounds.
MacBarnet (1981: 12-13) noted that for the evidential test the prosecutors do not have to prove everything a jury might want to know, they only have to produce an efficiency of evidence. Although the portion of cases dropped on public interest ground is relatively small, it is found sometimes decisions to not prosecute on what are claimed to be on ‘evidential’ ground are actually taken on the ‘public interest’, which is interpreted as the ‘state interest’, enabling the government wrongdoing to be covered up by non-prosecution (Young, 2010: 426).
Further, it is acknowledged that the DPP is the sole arbitrator of what is in the public interest, thus the manner in which he executes this responsibility must be subject to ongoing scrutiny (House of Common Justice Committee, 2009).
However, currently, formal judicial view is the ‘only means by which citizens can seek to redress against a decision not to prosecute. ’(Cited in Manning, 2001) Given the grounds for challenges are not provided, this method is ‘ available… but highly exceptional remedy’ (Cited in C, 1999).
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In 2009, of only 338 applications made for Judicial Review of a criminal matter in which only 86 cases were granted (BBC news, 2012).
In addition, David Cameron announced his plans to further reduce the use of Judicial review in November 2012, and this made Judicial review more presentational. Moreover, decision not to prosecute may be susceptible to judicial view under Convention rights incorporated into the HRA, in pursuit of wider public accountability. In Oct 2009, Keir Starmer recognized its ‘basic and fundamental role as providing legitimate comfort for us’ (The Telegraph, 2009).
In case of Purdy, the court required the DPP to ‘clarify … the factors that he regard as relevant for and against prosecution’ in cases of encouraging and assisting suicide under Art 8. Consequently, specific guidance were published on assisted suicide in response to the court ruling, and other certain offences such as rape were also set out to reflect public interest. However, despite the danger of prosecutors creating laws, in R v A (RJ) the Lord Chief Justice commented that ‘the CPS guidelines were just elementary, and it remained open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance’.
This suggests an inconsistent approach would be adopted across the CPS. Thus, given the nature of due process is the strict adherence of procedures in order to guard against the misuse of powers, it is evident that the prosecution policies do not fulfill much of the due process model. Next, with regard to the ‘ideal of equality’ between the parties, before we further discover the operations of the CPS, there are underlying inequalities when prosecutions were brought by agencies other than CPS (Ashworth, 2000).
Around one quarter of prosecutions are brought by various non-police agencies, such as the Health and Safety Executive (HSE).
Their prosecution patterns and processes are similar to those of the police but they cannot usually arrest or charge suspects. They only report for summons (Young, 2010: 411).
This lenient approach has been of central attack when those middle-class wealthy offenders are dealt with by regulatory means, whereas the more disadvantaged members are left with their conduct being defined as a police matter (Ashworth, 2000).
In life there are a lot of issues that involve social psychology. Being a police officer is a profession that encounters a lot of social psychology issues. One issue that all police officers have to encounter is prejudice. Police officers have to not be prejudiced against the citizens that they are trying to protect and serve the criminals that they must apprehend and also against each other. Two ...
Therefore, as Packer (1968) claims that, ‘there can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Indeed, the type of ‘justice’ prosecution agencies supposedly to promote is more towards the crime control model, which was also formulated by Packer. This stands in a seemingly direct contrast in due process in stressing the efficient control of crime that prioritizes the repression of criminal conduct. In order to achieve efficiency, criminal process is based on a series of routinized operation whose success is gauged primarily by their tendency to pass the case along to a successful conclusion (Packer, 1968: 2).
The key to this process is the early administrative fact-finding stages, so it is important to put less limit restrictions to enhance efficiency and reliability (Packer, 1968:2).
Based on the assumption that pre-trial police screening processes are reliable indicators of probable guilt, a ‘presumption of guilt’ is formed so that those who have enough evidence to suggest that they are guilty are treated as such (Packer, 1968:3).
The ideal mechanisms for the successful operating of this model are guilty pleas as they eliminate lengthy and expensive trials (Young, 2010: 22).
When applied to CPS, we can see that there is a presumption of guilt. The English system operates based on the ‘adversarial principle’ that it is up to the prosecutor to demonstrate beyond reasonable doubt that the person is guilty. However, the reality is that there is a system of routinized decision making embodying an overwhelming propensity to prosecute, bolstered by the presumption that earlier decisions were properly made and should not be overturned (McConville, Sander, Leng, 1991: 126).
Following the Glidewell proposal, CPS and the police formed a ‘prosecution team’ to build more collaborations.
Although the CPS determines the charge in all but the most routine cases, the importance of police control over initiating prosecutions and constructing the case file could not be ignored. In Criminal Cases Review Commission (2010-2011), it was identified that police non-disclosure of relevant information as a ‘recurrent theme’ for referring cases to the Court of Appeal. Since prosecutors can only disclose materials that are received from the police, with the police concerning only with securing a charge and providing inadequate information, it is difficult for CPS to truly independently review a case (Brownee, 2004).
There are many aspects of law enforcement that are not clear. One of the few certainties in policing is that there is about 17,000 police departments in the U.S.A . The exact numbers are not important to most researchers. There most likely isnt a survey on how many of these departments use 911 operators or use handcuffs, because our findings would usually be accurate. Other factors , may be more ...
This problem has not been solved after the statutory charging scheme draws prosecutors into advising the police at early investigative stage, given that it requires a cultural change on the part of the police (Young, 2010: 382).
Yet some prosecutors share common values with the police in having conviction-oriented goals, as Baldwin (2004) found that many difficult cases turned on the evidence of a single witness. Hiding information for the case to appear stronger to conviction are also common (Young, 2010: 391).
In Ward, the prosecutors were found to hide certain materials which might have been helpful to the defence in order to secure a conviction. Quick (2006) also noted that relevant material is often only revealed by chance during trials. Another accusation against the CPS is that they would only pursue the “most certain cases”, perhaps because of how their performance targets worked (Cited in Ward, 1993).
They regularly undercharge defendants in order to boost their conviction rates or by accepting a guilty plea to a lesser offence.
One observation made by a District judge was that a wounding was incorrectly charged as an assault (Worcester News, 2012).
Moreover, based on the ‘presumption of guilt’, legal practitioners largely view defendants as both morally culpable and substantively guilt, so crime control followers view trials as unnecessary whereas guilty pleas being more efficient in saving resources and predictable (Maynard, 1984).
Since 2004 the Guidelines on sentence reduction on guilty pleas was issued, the official CPS conviction rate has risen, but are heavily impacted by the rate of guilty pleas, with 68. % of defendant cases in Magistrates court and 72. 8% in Crown court in 2011/12. However, while plea bargaining operates in securing early guilty pleas (CPS Publication, 2012), there are undue pressures placed on defendants, inducing them to plead guilty to something the prosecution could not have proved, or penalize those defendants who plead not guilty (Baldwin and McConvile, 1977).
In his Enquiry Concerning the Principles of Morals, Hume offers up a number of virtues and qualities which are valued for any of four reasons: they are useful to the individual, useful to society, agreeable to the individual, or agreeable to society. One of the qualities which Hume elucidates is justice. This quality, however, according to Hume, is valued solely for its usefulness and not upon any ...
Hence, given that the ‘crime control’ concept of justice prioritises the suppression of crime over civil liberties, the type of ‘justice’ prosecution agencies supposedly to promote appears to be more based on this model.
So far we have discussed about the procedural approach of criminal justice. As Young (2010) acknowledged that, criminal justice is ultimately a social construct that is fallible to the inequalities inherent in society. For my final ‘lens’, I will consider justice through victims’ perspective that has recently become a significant element appearing in policies relating to crime (Mawby, 2007; Walklate, 2007).
With the government stressing that it is fundamental to fulfill victims’ rights and needs, the victim’s Code of Practice sets out comprehensive rules for dealing with the victims of crime.
Admittedly, there are significant progress have been made to address the victims’ needs. However, the victims still have no influence on any decision as to the level of charge for the crime (Vocals, 2013).
Moreover, this Code is modeled around Legitimate expectations, and thus more concern is given to practical support, rather than rights (Hall, 2009b).
A report based on official government data and survey findings claims that guidelines on dealing with victims are routinely broken (Victim Support, 2011), and in such cases, victims can only complain (Home Office 2005: 1. ).
In addition the prosecutors now have responsibility to inform victims about their case through Direct Communication with Victims scheme (HM CPS Inspectorate, 2009), but the report points out that only around half of all reported crimes in which victims were kept informed about their case to a satisfactory level. Therefore, due to the structure of adversarial system that envisages the contest between the state and the individual suspect, the victims’ justice are not adequately served.
For non-police agencies, the British ‘opportunity’ principle has enabled them to develop their own prosecution policies. Unlike CPS, they usually seek to maintain continuing relationships with companies by trying to persuade them to comply the law, and to avoid prosecution wherever possible (Young, 2010: 412).
The aim of this strategy is prevention rather than punishment. However, due to the lack of resources, the regulatory agencies could not prosecute everybody (Whyte, 2008).
Although the CPS could take up any case at any point, the involvement of economic and other social factors would make the DPP reluctant to take risks in sensitive cases (Young, 2010: 417) In addition, justice could not be served from a victim’s standpoint where ‘regulators’ discuss possible sentence with criminals, taking into no considerations of the victims. (Regulators’ Compliance Code, 2008) In conclusion, I would argue that according to the standards of different perspectives, CPS would be fitted more into crime control values in improving effectiveness and efficiency of the criminal justice system.
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