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The
Gower Hammond Report concerned the role of the Solicitors
Office of Customs and Excise and, if it was to be
retained as a prosecution body, the issue of its independence
within Customs and Excise, and the role of lawyers
in the prosecution of the cases.
This
report has clear implications for the HSE as Customs
and Excise is a body similar to HSE in that his investigation,
enforcement and prosecution responsibilities within
it. As the report itself says:
“Customs
and Excise is primarily a revenue collection, protection
and enforcement agency and its role as a prosecuting
authority has to be seen against this background.
It is not unique in being a government department
or agency with a prosecuting function. Others include
the Department of Trade and Industry, the Board
of Inland Revenue, the Serious Fraud Office, the
Department of Social Security, the Health and Safety
Executive, planning authorities and local authorities
generally.”
Background
On 8th June 2000 the Government published the report
of an Inquiry by His Honour Gerald Butler QC into
the prosecution of the case of Regina v Doran and
Others - which had been stayed by the Judge.
Recommendations 26 and 27 in the Butler Report were
as follows:
"Consideration
should be given as to whether or not prosecutions
at present conducted by Customs should continue to
be conducted by this, or by another prosecuting authority.
If Customs are to continue as a prosecuting authority,
there should be an independent inspectorate established.
This might be made an extension of the powers and
duties of the current CPS inspectorate."
In
its response to the Butler Report the Government agreed
that consideration should be given to the issue raised
in recommendation 26 and established a Review conducted
by His Honour John Gower QC, assisted by Sir Anthony
Hammond KCB QC to examine the relevant issues and
to make recommendations. The terms of reference for
the Review were as follows:
"Having
regard to the Butler Report and the Hosker Report,
the tripartite system operated within Customs and
Excise in relation to the investigation and prosecution
of offences, and to all other relevant considerations,
to examine -
| (1) |
whether
or not some or all of the prosecutions at present
conducted by the Solicitor’s Office of
HM Customs and Excise should continue to be
conducted by that Office; |
| (2)
|
to
the extent that it is concluded that the Solicitor’s
Office should not continue to conduct some or
all of those prosecutions, whether such prosecutions
should be conducted by an existing prosecution
authority, or by some other body; |
and
to make recommendations."
Issues
of Independence
One of the key issues at the heart of this report
was the issue of the independence of the Solicitors
Office within Customs and Excise, and the role of
lawyers in the prosecution of the cases.
In chapter 4, the report looked at the implications
of the 1981 report of the Royal Commission on Criminal
Procedure (to read about this, click here) which concluded
that there needed to clear separation and independence
between the investigation and prosecution and which
resulted in the establishment of the Crown Prosecution
Service.
In relation to this, the Gover-Hammond report stated
at paras 4.16 to 4.20
“How
does present practice [of Customs and Excise] fit
in with the "Philips principle" and how
rigid should be adherence to it? We have already
stated that we accept the Philips criteria as constituting
the proper objectives of a criminal prosecution
system. Nevertheless, we suggest that it would be
wrong to regard them as a "Shibboleth",
that is, a set of rules which must always be followed
to the letter if a criminal justice system is to
command the confidence of the public.
As referred to above, the Commission said in their
Report that the "...pure theory of separation
could not work in practice." (6.31). Soon after
the establishment of the CPS the Serious Fraud Office
("SFO") was created under the Criminal
Justice Act 1987. The very nature of the SFO's work
dictated that lawyers and investigators should work
together from the earliest stages of an investigation,
and indeed, they operate from the same building.
To our knowledge it has never been suggested that
this arrangement has led to unfairness or prejudiced
the impartiality of the lawyers' decisions on evidential
sufficiency and the public interest in relation
to whether or not to prosecute. In making these
decisions the lawyers comply with the Code for Crown
Prosecutors.
Owing to concerns about the organisation and efficiency
of the CPS, the Government commissioned a Review
of the service chaired by Sir Iain Glidewell, whose
Report was published in June 1998 ("the Glidewell
Report"). This Report recommended closer working
between CPS lawyers and the police, for example
in "Criminal Justice Units". The Report
proposed that these units be headed by a CPS lawyer
with mainly CPS staff. Because the units would need
to be able to call on the police to take action
in obtaining more evidence, a senior officer would
need to be part of each unit which would be housed
in or near the relevant police station (Glidewell
Report Summary paragraph 29).
The Report also recommended the re-establishment
of small groups of Special Casework Lawyers who
would be available to provide early advice to the
police (Glidewell Report Chapter 9, paragraphs 32
and 33). These examples demonstrate a pragmatic
approach to the Philips principle, promoting efficiency
without compromising the independence of the lawyer
when taking decisions whether or not to prosecute
an alleged offender or whether or not to discontinue
a prosecution already up and running.
How
did Customs and Excise Operate
The report summarised the way Customs and Excise operated.
| 3.7 |
Customs
and Excise separate responsibilities for investigations
and prosecutions into a tripartite arrangement,
comprising Investigators, the Solicitor’s
Office and Administrators. This enables an objective
judgment to be brought to bear in the handling
of criminal cases and also ensures that the Department’s
wider enforcement policies are taken into account. |
| 3.8 |
Investigators
assess whether or not a criminal investigation
should be instigated, determine the nature and
scope of any investigation acting within the enforcement
policies and priorities laid down by administrators,
carry out investigations and present the material
gathered to the Solicitor’s Office. |
| 3.9 |
Lawyers
in the Solicitor’s Office assess whether
or not the evidence gathered by investigators
is sufficient to provide a realistic prospect
of conviction. They advise on further lines of
inquiry which may not have been adequately covered
or may be expected to produce material relevant
to the issues in the case. They also consider
issues relating to disclosure. In addition they
advise on decisions which may have to be taken
once a prosecution has commenced, including those
relating to the public interest, although the
decisions are not theirs. |
| 3.10 |
Administrators
in the Enforcement Directorate determine departmental
enforcement policies which reflect an assessment
of the public interest in investigating and prosecuting
in the different areas of the Department’s
work. Branch Heads are responsible for determining
the public interest in individual criminal cases
in their subject area, by assessing the wide range
of issues which have to be considered in the circumstances
of the case, and have the final say on whether
proceedings should commence or continue. This
role is also carried out by Collectors in certain
types of case in which authority to issue proceedings
orders or to compound proceedings has been delegated
to Collectors. |
| 3.11 |
There
are special arrangements for cases which are deemed
sensitive. These are subject to regular review
and the administrator is the case co-ordinator.
In sensitive cases the administrator’s role
must be assumed by Headquarters staff in the relevant
policy area. Whilst the investigators, lawyers
and administrators act within the realm of their
respective responsibilities, each does not act
in isolation but should liaise with and consult
the others. |
| 3.12 |
It
is the essence of the tripartite arrangement that
although lawyers decide on the sufficiency or
otherwise of the evidence to support a prosecution,
the Commissioners of Customs and Excise through
the administrators decide whether or not the public
interest would be served by a prosecution. Similarly,
once a prosecution has been started, it would
be an administrator and not a lawyer (including
prosecuting counsel) who would take a decision
as to whether or not proceedings should be stayed. |
| 3.13 |
The
systems in Scotland and Northern Ireland differ
fundamentally from that in England and Wales.
Whilst in both those jurisdictions it is an administrator
who takes the initial public interest decision
and signs an order to prosecute, in Scotland it
is a Procurator Fiscal or Advocate Depute, and
in Northern Ireland the Director of Public Prosecutions,
who decides whether or not there should be a prosecution,
and whether or not a prosecution already started
should be continued. In taking such decisions
these lawyers consider not only the sufficiency
of evidence, but also the public interest in its
widest sense. In relation to the latter they take
into account the views of the administrators,
but the decision is theirs. |
| 3.14 |
Some
might see the tripartite arrangement as an application
of the "Philips principle", that is
the separation of decisions whether or not to
prosecute an alleged offender from the investigation
of the crime for which he is suspected. |
What did the Report Recommend
The report concluded that changes needed to be made
to ensure (a) independent legal oversight of prosecution
decisions. In summary it concluded the following:
"We
have considered what needs to be done in order to
enable Customs and Excise prosecutions to be prepared
and conducted in a manner meeting the criteria of
fairness, accountability and efficiency. It is our
clear view that in exercising his prosecution function,
including the giving of advice to investigating officers,
the Customs and Excise Solicitor and his staff must
be truly independent and to be seen to be so. This
is the guiding principle behind our recommendations
relating to the Solicitor's chain of responsibility
for his prosecuting function and its funding."
It
then set out its recommendations on this issue under
three titles: (para 8.2 - 8.6)
Accountability
In discharging the prosecution function the Solicitor
and his staff have a responsibility to the wider
criminal justice system. The perception and reality
of the Solicitor's independence are so vital that
in our view if he is to retain his prosecuting role
he must no longer be responsible to the Board for
the exercise of that function, nor should he be
dependent upon the Board for resources. The Solicitor
should be responsible to the Attorney General in
relation to his prosecuting function. Cases will
continue to be brought in the name of Customs and
Excise, but it will be the Attorney General and
not the Board of Customs and Excise who will be
accountable for the management and conduct of the
cases. The success of the arrangements which we
described in Chapter 2 in connection with sanctions
and defence export cases, including the apportionment
of ministerial responsibility, working upon a basis
of goodwill and common sense, supports our view
that this is the right way forward.
Resources
The importance of the Solicitor's independence set
out above leads us to conclude that fundamental
changes are required to the way in which the Solicitor's
Office receives funding for its prosecution function.
This funding should no longer be provided by the
Commissioners. The Solicitor should have his own
budget and be accountable for his own expenditure.
Consideration should be given to the Solicitor having
his own vote, but in any event his funding for the
prosecution function should be "ring-fenced".
We consider that ring fencing is no more than a
relatively simple exercise in accounting and in
making his bid for Prosecution Group resourcing
the Solicitor would include a sum for "infrastructure",
for example office space and general accommodation
facilities. More generally, we are satisfied that
arrangements can be made to give effect to this
change.
Inspectorate
In its response to the Butler report, the Government
accepted an independent inspectorate of the Solicitor's
Office, if the Solicitor's Office retained its prosecution
function. Consequently our consideration was limited
to recommending an agency appropriate to carry out
the inspections. The CPS Inspectorate, now on a
statutory footing, is an established organisation.
To set up a new inspectorate limited to Customs
and Excise would not be cost effective and would
involve unjustified public expenditure. Inspection
of the Solicitor's Office prosecution function by
the CPS Inspectorate would tend to promote consistency
of standards between Customs and Excise prosecutions
and those of the CPS. For these reasons we believe
that the CPS Inspectorate is the most appropriate
body to perform this function. The Chief Inspector
of the CPS Inspectorate sees no objection in principle
to such an extension of his function.
The
tripartite system
We agree that investigators, lawyers and administrators
all need to be involved in the tripartite system.
We agree that there should be consultation and liaison
between the Solicitor's Office and administrators
regarding decisions whether or not to prosecute
and to continue prosecutions. However, once a decision
has been made to pass papers to the Solicitor's
Office with a view to criminal proceedings, the
decision whether or not to prosecute is a legal
one and should be taken by a lawyer after seeking
the views of an administrator on matters of policy
and the public interest. In revenue cases there
should always be consultation before the final decision
is made. For the avoidance of doubt, our conclusion
and recommendation relate only to those instances
where a case is referred to the Solicitor's Office
with a view to prosecution and do not apply to those
cases which are referred to the Office for advice,
for example as to the sufficiency of evidence with
a view to a compound.
Recommendations
in Full
| 1 |
The
Customs and Excise Solicitor's Office should
retain its prosecution function. |
| 2 |
Whilst
the Solicitor's Office should remain part of
Customs and Excise, in relation to his prosecution
function the Solicitor should be accountable
to the Attorney General and not to the Commissioners
or their Chairman. |
| 3 |
The
solicitor/client relationship between the Solicitor
and the Commissioners of Customs and Excise
should cease in relation to the Solicitor's
prosecution function. |
| 4 |
In
relation to his prosecution function the Solicitor
should not be funded by the Commissioners. He
should have his own budget and be accountable
for his own expenditure. Thought should be given
to his having his own Vote. In any event his
funding should be "ring-fenced". |
| 5 |
In
the interests of promoting quality assurance,
best practice and consistency in applying the
Code for Crown Prosecutors we recommend that
inspections of the prosecution function of the
Solicitor's Office be carried out by the CPS
Inspectorate. |
| 6 |
Where
cases are referred to the Solicitor's Office
with a view to prosecution, decisions on whether
or not to prosecute and whether to continue
prosecutions should be made by a Customs and
Excise lawyer after seeking the views of an
administrator when appropriate on matters of
policy and the public interest. The administrator's
role will be particularly important in relation
to cases with a revenue aspect. In such cases
the lawyer should always consult an administrator
before making the decision. |
| 7 |
Adequate
resources in terms of personnel, funding and
accommodation must be made available to enable
the Prosecution Group of the Solicitor's Office
to operate efficiently and to deliver the service
expected of it. This is vital. |
| 8 |
Urgent
consideration should be given to improving the
working conditions, including accommodation,
of staff in the Prosecutions Group with a view
to eliminating overcrowding, reducing noise
level, and affording reasonable privacy to lawyers
- especially those in the Special Casework Division
in London and Manchester engaged in heavy, complex
and demanding casework. |
| 9 |
Conferences
with counsel should be arranged by a Prosecutions
Group lawyer or a member of the support staff
acting on the instructions of a lawyer and never
by an investigating officer. |
| 10 |
On
hearings in the Crown Court and at conferences
prosecuting counsel should be attended by a
Prosecutions Group lawyer or a suitably trained
and experienced support staff member, save in
very exceptional circumstances. |
| 11 |
The
Solicitor's Office should be able to hold out
good career prospects with a view to attracting
and retaining lawyers of high calibre and potential. |
| 12 |
Consideration should be given to Customs and
Excise lawyers with higher court advocacy rights
using them to appear in the Crown Court:
| (a) |
on plea and directions hearings; |
| (b) |
on
interlocutory hearings not requiring the
attendance of Counsel briefed to appear
on trial; |
| (c) |
as
junior counsel on trials; |
| (d) |
on
guilty pleas; |
| (e) |
on
appeals against summary trial convictions
and sentences. |
|
| 13 |
Customs
and Excise lawyers without higher court rights
should be helped to acquire them. |
| 14 |
Lawyers
seconded from the Customs and Excise Solicitor's
Office Prosecution Group to give legal advice
to the National Investigation Service should
remain or become members of that group and
responsible to its Head.
The
length of the secondment period should be
kept under review and, in the light of experience
of the working of the secondment system, consideration
should be given to whether the present two
years secondment for individual lawyers should
be reduced.
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| 15 |
In
accordance with the "Philips principle"
and in line with CPS practice, Customs and Excise
investigating officers and local staff should
no longer have audience rights in Magistrates
Courts. All court proceedings relating to prosecutions
or potential prosecutions should be conducted
by qualified lawyers or appropriately trained
Solicitor's Office staff. |
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