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The statutory charging scheme in England and Wales: Towards a unified prosecution system?
Abstract
Following recommendations in the Auld Report the Government has determined that the function of charging suspects in England and Wales will be transferred incrementally from the polie to the Crown Prosecution Service who will become involved in an early stage in the direction of criminal investigations. This article sets out the background to this important development and describes how it is intended to work in practice. It looks at the possible legal challenges that the new procedure might face before discussing some of the practical issues which will have to be resolved if the initiative is to achieve its aims.
... Not only did the police omit any considerations of whether a charge was necessary in the public interest. They were also undertaking a precautionary approach with a tendency to overcharge suspects which, lacking relevant evidential material, could lead to a large number of discontinued cases (Brownlee, 2004 across England and Wales. The evaluation of its impacts showed that, despite fewer charges, conviction rates had improved in six of the nine pilot sites (Brownlee, 2004). ...
... They were also undertaking a precautionary approach with a tendency to overcharge suspects which, lacking relevant evidential material, could lead to a large number of discontinued cases (Brownlee, 2004 across England and Wales. The evaluation of its impacts showed that, despite fewer charges, conviction rates had improved in six of the nine pilot sites (Brownlee, 2004). Given these positive results, the Attorney General announced that the Government intended to bring forward legislation (i.e., the Criminal Justice Act, 2003) to effectively transfer from the police to the Director of Public Prosecutions, acting through local crown prosecutors, the responsibility for deciding whether there is sufficient evidence to charge a detained person in relation to the majority of offences (Iannacci, 2008). ...
... Whenever the 'threshold test' is applied, a specific date must be agreed between the duty prosecutor and the investigating officer for a review of the case in accordance with the full code tests (i.e., sufficiency of evidence and public interest tests), these tests setting out the general criteria to regulate the discretion of crown prosecutors (Iannacci, 2008). Decisions on all charging matters are recorded in writing on an ad-hoc form called the 'MG3' form (i.e., Manual of Guidance 3) which contains two sides: the front side is a 'request for a charging decision' and must be completed by the investigating officer, while the rear side, which is filled out by the duty prosecutor, includes the charging decision or, alternatively, either the steps to be taken before this decision can be reached or the reason for declaring no further action (Brownlee, 2004). ...
Organisational routines embed and are increasingly embedded within IT artefacts. In this paper, I challenge the conventional notion that warrants the primacy of human activities in the study of routines and bring artefacts in general and IT artefacts in particular to the very centre of my theorising. Through an in-depth case study of crown prosecutors’ work, I endeavour to explain the way legislative and IT artefacts are implicated in the transformation of police–prosecutor routines. I show that legislative artefacts play a constitutive role that generates a new role position and a new system of social practices while IT artefacts serve a regulative function that enforces a newly programmed sequence of steps onto pre-existing practices. I argue for the benefits of foregrounding legislative and IT artefacts to develop a nuanced account of organisational routines that responds to recent calls for research that contextualises the IT artefact outside single settings. I draw on the Transformational Model of Social Activity to unpack the causal linkages between legislative and IT artefacts. Theoretical and practical implications are discussed.
... Statutory charging aims at 'narrowing the justice gap', that is the attrition rate between the total number of offences recorded and the number that results in a person being convicted, cautioned or the offence being taken into consideration. The specific aims of statutory charging may be summarised as follows: the elimination at the earliest opportunity of hopeless cases that represent a fruitless expenditure of resources by the police on enquiries and file preparation and by the CPS on review and consultation, the production of more robust prosecution cases and the elimination of unnecessary or unwarranted delays in the period between charge and disposal (Brownlee, 2004). ...
... Yet the role of the CPS remained essentially overly dependent on early investigative decisions taken by the police. Not only did the police omit any considerations of whether a charge was necessary in the public interest; the police were also undertaking a precautionary approach that often led to choosing the most serious of the charges which, if compounded by delays in obtaining evidence and slow corrective actions by the CPS, could have negative repercussions on the criminal justice system as a whole (Brownlee, 2004). ...
... sides: the front side is a 'request for a charging decision' and must be completed by the investigating officer whereas the back side includes the charging decision and must be filled out by the duty prosecutor (Brownlee, 2004). ...
Drawing on the notion of information infrastructure as a relational concept, this paper endeavours to highlight the links between data standards and institutional facts. Although social science studies have emphasised the interplay between socio-technical factors, the author suggests that such approaches have overlooked the role that institutional facts play in the development of information infrastructures. An in-depth, qualitative case study of a recent episode of institutional change within the criminal justice system of England and Wales reveals how institutional facts are entangled with data standards through iterative sets of constitutive rules that are mirrored by their associated logical messages in an isomorphic fashion.
... The specific aim of statutory charging may be summarised as follows: the introduction of inter-agency co-operation to rationalise the criminal justice system eliminating at the earliest opportunity hopeless charges which represent a fruitless expenditure of resources by the police and by the CPS. The reform aims at achieving these goals by providing resources to produce more robust prosecution cases and by eliminating unnecessary or unwarranted delays in the period between charge and disposal (Brownlee, 2004 In the new system police officers continue to play a key role because they operate as ''gatekeepers". It is the police officer who must first determine whether there is sufficient evidence to detain a person. ...
... Decisions on all charging matters are recorded in writing on an ad hoc form which is called ''MG3" (i.e. Manual of Guidance 3) (Brownlee, 2004). ...
Despite the burgeoning number of studies of public sector information systems, very few scholars have focussed on the relationship between e-Government policies and information systems choice and design. Drawing on Fountain’s (2001) technology enactment framework, this paper endeavours to conduct an in-depth investigation of the intricacies characterising the choice and design of new technologies in the context of e-Government reforms. By claiming that technologies are carriers of e-Government reform aims, this study investigates the logics embedded in the design of new technology and extant political interests and values inscribed in e-Government policies. The e-Government enactment framework is proposed as a theoretical and analytical approach to understand and study the complexity of these relationships which shape e-Government policies.
Tasked with enforcing criminal law, public prosecutors worldwide enjoy broad discretion. Existing literature on prosecutorial discretion and accountability tends to discuss the regulation of prosecutorial discretion or analyse the influence of the procedural environment in which public prosecutors operate. This paper focuses on occupational culture as an important factor affecting prosecutorial decisions. It draws particular attention to an understudied aspect of prosecutors’ professional identity: legitimacy and, specifically, self-legitimacy, ie the belief public prosecutors have in their own legitimacy to make decisions in individual cases. The paper presents research findings from direct observations and interviews which reveal a sense of a loss of self-legitimacy amongst Crown Prosecution Service (CPS) staff due to the constant monitoring of their decisions by colleagues and managers. This all-pervasive managerialism, paradoxically, undermines the very legitimacy (and, relatedly, transparency) which the CPS has had to work so hard to develop since its inception.
Nos últimos anos, surgiram novas tentativas de conceder mais poder e autoridade aos promotores de Justiça na Inglaterra e no País de Gales. Este artigo leva em consideração as implicações éticas dessas mudanças, afirmando a necessidade de uma reflexão mais cuidadosa acerca dos princípios éticos que deveriam guiar os promotores de Justiça nesse momento. Este artigo argumenta que caracterizar o papel dos promotores de Justiça como quase-judicial ou como desempenhado em nome do interesse público não ajuda muito, pois deixa de delinear o papel preciso que os promotores deveriam desempenhar no processo penal. Argumentar-se-á que esse papel fica mais bem caracterizado como sendo o de proteger o bem-estar da comunidade levando aqueles que parecem ter causado danos aos interesses e valores da comunidade a responderem por seus atos. Isso ajuda a identificar o modo como os promotores deveriam abordar os poderes decisórios mais amplos que têm recebido e como deveriam interagir com o público e com outros atores do sistema de justiça criminal (a Polícia).
Before focusing on my own research into the role of the Cyprus Attorney General’s Office in prosecutions, in this chapter, a comparative description of prosecution systems in a number of other jurisdictions will be attempted, bearing in mind that “it is impossible to understand prosecution in one country or culture without seeing how it differs from prosecution elsewhere” (Johnson 2002, p. 89).
In the first section, the origins, constitutional position and organisation of prosecution services in three common law countries (England and Wales, Ireland and Northern Ireland), a mixed jurisdiction (Scotland), as well as a number of inquisitorial jurisdictions (mainly France, Germany and the Netherlands) will be described. The second section will deal with the role of the prosecuting authorities in investigations and the third one with the way different prosecution systems approach the issues of prosecutorial discretion, diversion from prosecution and the formulation of prosecution criteria and policies. This comparative analysis will not be constrained to a theoretical description of the systems; wherever empirical studies are available they will be cited, so that an insight into matters of practice, as well as principle, can be achieved. However, it has to be noted that, regrettably, empirical research studies in inquisitorial jurisdictions are significantly limited in comparison to the ones available in common law jurisdictions.2
This book is a fascinating and entirely original work about the role of the Cyprus Attorney General s Office in prosecutions. It is based on data gathered using an impressive blend of methods, including observation, a documentary survey and semi-structured interviews within the Office. The book focuses mainly on the workload of the Law Office and its relationship with the Police, the role it acquires during investigations and its role in the formulation and application of prosecution policies. These themes are approached from three different angles: the legal framework and the rhetoric developed over time concerning these areas, combined with the manner in which successive Attorney Generals have approached their role; the ideology that characterises the Law Officers position towards these particular functions, and the actual day-to-day activity (practices) observed within the Law Office. Although the central purpose of this work is to provide a profound understanding of the Cyprus system, wider conclusions can be drawn which exceed the boundaries of the particular jurisdiction and shed light on the most debatable aspects of the prosecution process in all jurisdictions. © Springer-Verlag Berlin Heidelberg 2010. All rights are reserved.
The administration of ‘summary’ justice in the lower criminal courts in England and Wales is undergoing significant transformation.
Broadly, this sits within the desire to create a modernized and more streamlined system. But, criminal justice scholars state
‘swift justice’ is not necessarily fair justice, and ‘procedural due process’ might be challenged by objectives of economics
and speed. This paper centres on two areas of change—the expanded role of the police in prosecutorial decision making and
the introduction of ‘virtual courts’ where accused defendants appear via video link from police stations to the criminal courts.
It is argued these two alterations call into question fundamental principles of procedural due process.
This article explores the ethical implications that arise from the enhanced role being given to public prosecutors in England and Wales in advising on criminal investigation, directing charges and in diversion and advocacy. The article argues that in order to develop ethical principles that take full account of these expanding activites, there is a need for a clearer delineation of their professional role within the criminal justice system. It is argued that as part of their prime concern to protect the well-being of the community, prosecutors should play a greater role in fostering restorative justice.
This study aims to explore the discretion of the police and prosecutors during the pre-trial stage based on six systems of criminal justice: England and Wales, the United States, France, Germany, Japan, and South Korea. In criminal proceedings, discretion plays a significant role in supplementing as statutes cannot provide for every circumstance. In particular, at the pre-trial stage, public prosecutors can conclude their cases by exercising considerable discretion. Such discretion differs depending on the jurisdiction. The differences demonstrate distinctive prosecutorial roles. Based upon these findings, I propose that in general, the public prosecution service plays a filtering role. Unlike other jurisdictions, in Korea the prosecutors act as monopolists. However, justice cannot be achieved by the monopoly of one legal actor in the criminal proceedings.
This article presents original empirical data generated from the Crown Prosecution Service (CPS) Pilot Evaluation of pre-trial
witness interviewing (PTWI) in England and Wales. Section 1 introduces the PTWI Pilot and describes the methodological strengths
and limitations of our qualitative socio-legal study. Forming the richly documented empirical core of the article, Sections
2–5 identify the principal considerations which seemed to influence case selection for Pilot interviews. An overlapping collection
of evidentiary, strategic and circumstantial factors encouraged prosecutors to resort to PTWI, whilst other, countervailing
considerations were apprehended as disincentives. Assessments of witness credibility were central to prosecutors’ attempts
to balance these competing factors. Section 6 concludes by underlining the potential of qualitative socio-legal studies to
promote more nuanced understandings of criminal process, and by extension to make practical contributions to evidence-based
criminal procedure reform.
The main question which motivates the inquiry undertaken in this book is: what should public prosecutors do when victims withdraw support for domestic violence prosecutions? The answer defended herein can be summarized as follows: within the realm of justified (permissible) action, prosecutors should respond effectively; which is to say that, ceteris paribus, domestic-violence prosecutors should respond as feminists. This claim is intended as a provocative formulation of the proposition that domestic violence prosecutors should act for reasons generated by the value of reconstituting their states (and communities) as less patriarchal. This book defends that claim in two steps: first, it sets out a general theory of prosecutorial practical reasoning and second, it considers the prosecution of domestic-violence offences in particular. Along the way, this book provides an original account of the nature of prosecutorial action, the values that can be realized through such action, and the relationship between these values and the practical reasoning of criminal prosecutors. Moreover, it provides analyses of two key concepts, domestic violence and patriarchy, and explains the relevance of the latter to a proper understanding of the former. The book then puts the preceding insights to work in answering the motivating question stated above, providing answers both in terms of what prosecutors would be justified in doing and what prosecutors should do in order to be effective. Chapter 9 applies this general framework in addressing the rights and duties of domestic violence victims to participate in criminal prosecutions. In the final chapter, the book examines and responds to some general objections that might be raised to the arguments herein, ultimately defending the role of the domestic-violence prosecutor-as-feminist.
Sexual offences are notoriously difficult to prove, even without the added evidential difficulties posed by a key prosecution
witness with mental health problems. Yet, according to the annually published criminal justice statistics, the conviction
rate for sexual activity with a person with a mental disorder is, on average, around three times greater than that for rape.
This article begins by scrutinising the plausibility of such a counter-intuitive proposition, concluding that the greater
success implied by the statistics is likely to be more apparent than real. In the process of reaching this conclusion, challenging
questions surrounding the prosecution of sex cases involving mentally disordered complainants are raised. These substantive
and practical issues are explored in a critical analysis of new empirical data and reported cases.
KeywordsProsecution-Charge selection-Sexual offences-Mental disorder impeding choice-Capacity
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