Monday, 4 February 2013

Police prosecutions and the ‘deprofessionalisation’ of criminal advocacy: short-term savings with a long-term risk?

In October 2012, Home Secretary Theresa May announced that police powers of prosecution would be extended substantially for the purposes reducing bureaucracy and saving money. However, questions can be raised about both of these conclusions – and the symbolism of such a move is troubling. Under the plans, the police will not need to pass prosecutions to the CPS in around 50% of cases in the Magistrates’ Court, where more than 95% of all criminal prosecutions occur. As such, the police will be responsible for large proportion of all criminal prosecutions in England and Wales. The addition of 90,000 more cases to the police portfolio of duties could be problematic, both for them and for justice in general. 

This very sizeable chunk of extra work will test an over-stretched police force, already feeling the effects of austerity cuts. ‘Front-line’ policing is supposedly protected – but every other area of work appears to be vulnerable. One must wonder where this additional duty fits into the economic picture for the police? Will officers spend days in the Magistrates’ Court, processing minor offences, resentful of the added burden granted to them by the Home Secretary? Or will staff be hired to do so? Or will the police even contract advocates? The last of these seems the most unlikely as it would probably be the most expensive and render the transfer of cases from the CPS pointless. As such, it is arguable that the result will be not a saving of cost, but a shifting of cost. 

Additionally, one can’t help but feel police bodies and time could be better spent elsewhere. Increasingly, the police seek to divert suspects away from the trial system through the use of measures like conditional cautions, warnings and penalty notices; between 2003 and 2008, out-of-court disposals such as this increased by 135% (Office for Criminal Justice Reform, 2010). These may often be inappropriate; suspects may be urged by the police to save themselves time and trouble by accepting such an option, or may be coerced into believing in their own guilt (regardless of the factual reality). Equally, cases that should be pursued may be filtered out of the system, denying a sense of justice or ‘a day in court’ for a complainant. In the face of the Home Secretary’s proposed changes, such action might now be further incentivised as a ‘time saver’. 

The strategy also potentially threatens the integrity of the justice process. Prior to the Prosecution of Offences Act 1985, the police were responsible for the majority of criminal prosecutions in this jurisdiction and had been for over a century. The creation of the Crown Prosecution Service under the statute was aimed at ending miscarriages of justice, usually resulting from inappropriate, misguided or even illegal prosecutions by the police. The Home Secretary’s proposed change undoubtedly represents an extensive reversal of that legacy. 

It should be pointed out that the police will not be responsible for the prosecution of not guilty pleas, under 16s, cases started by charge, or those which may result in custody. As such, it can be argued that this will not necessarily result in a return to the ‘bad old days’. But it is a step in the wrong direction; legally qualified CPS advocates will be replaced with officers or staff untrained (or one presumes, at best, the very quickly trained) in prosecution advocacy. Prosecutions will not undergo the oversight of the CPS – a very public body, observed and audited regularly, and substantially more accountable and transparent than the police. 

Police culture is also very different; the problematic ‘tunnel vision’ mentality that has caused so many major miscariages of justice (for example, the Cardiff Three, the Birmingham Six, etc.) presents a serious threat if the police see their additional 90,000 cases as conveyor-belt processing of the guilty. Defendants are all entitled to legal representation and a fair hearing – even if they have pleaded guilty. The danger presented by rushing through cases considered ‘unimportant’ or ‘minor’ is the dehumanisation of the system. Inch by inch, this culture generates only a cursory respect for rights, minimal level of attention to detail, and limited commitment to thoroughness of procedure. 

This is not to say the CPS never lapse into such behaviour – they are frequently complained about by defence advocates – but they are, ultimately, legally trained and immersed in a culture with a different perspective on prosecution to that of the police. The move is a slippery slope – and few who remember want to see a slide back to the era before 1985.


Office for Criminal Justice Reform, 'Initial Findings from a review of the use of out-of-court disposals' (2010)

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