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Philip's Report - Royal Commission on Criminal Procedure
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The issue about the need for independence of prosecution decisions came to the public fore as a result of the Royal Commission on Criminal Procedure under the Chairmanship of Sir Cyril Philips which reported in January 1981.

The report asked, how was the satisfactory working of a prosecution system to be judged? The Commission's response to this question was to consider the existing arrangements and its proposed system against the broad standards of fairness, openness, accountability and efficiency.

The Report amplified this framework in paragraph 6.8:

"...Is the system fair; first in the sense that it brings to trial only those against whom there is an adequate and properly prepared case and who it is in the public interest should be prosecuted (that is, tried by a court) rather than dealt with in another way (by cautioning, for example), and secondly in that it does not display arbitrary and inexplicable differences in the way that individual cases or classes of case are treated locally or nationally? Is it open and accountable in that those who make the decisions to prosecute or not can be called publicly to explain and justify their policies and actions as far as that is consistent with protecting the interests of suspects and accused? Is it efficient in the sense that it achieves the objectives that are set for it with the minimum use of resources and the minimum delay? Each of these standards makes its own contribution to what we see as being the single overriding test of a successful system. Is it of a kind to have and does it in fact have the confidence of the public it serves?"

The Report went on to stress that the proper objective of a fair prosecution system is to

"... ensure that prosecutions are initiated only in those cases in which there is adequate evidence and where prosecution is justified in the public interest." (6.9)

In considering the separation of the investigator's and lawyer's roles the Report notes that it was

"... said to be unsatisfactory that the person responsible for the decision to prosecute should be the person who has carried out or been concerned in the investigation." (6.24)

and that

"... the case for separation is also argued on the ground that the investigator, by virtue of his function, is incapable of making a dispassionate decision on prosecution." (6.28).

However, the Commission does also state at paras 6.3--6.32 that:

"... as a matter of practice, it is difficult to achieve a total separation. The two roles overlap and intertwine. This is partly because the decision to prosecute is not a single intellectual act of a single person at an identifiable moment in the pre-trial process but it is made up of a series of decisions of a widely different kind made by many people and at various stages in the process.

We know of no common law jurisdiction in which the first decision maker, the officer on the street, has his discretion to start the process of prosecution circumscribed other than by his training and the constraints of the law. It would be impossible and, indeed, in our view, undesirable for this discretion to be further limited. Thus the pure theory of separation could not work in practice.

In the United States of America and in Scotland the prosecution systems are such that the police do not bring offenders before the courts in the first instance.... The independence of the lawyer from the police is clearly marked. The investigative functions of the police and the prosecutorial functions of the lawyer appear to have been separated.... A closer examination suggested to us, however, that in practice the complete separation of functions cannot be readily or completely achieved."

As a result, the report recommended that a prosecuting solicitor service – which came to be the Crown Prosecution Service - should be established to cover every police force. The service should be structured to recognise the importance of independent legal expertise in the decision to prosecute; make the conduct of the prosecution the responsibility of someone both legally qualified and not identified with the investigative process (fairness); and achieve better accountability locally for the prosecution service, whilst making it subject to certain national controls (fairness and openness).At paragraph 7.5 the Report summarises the functions of the prosecution agency as follows:

"(a) the conduct of all criminal cases once the decision to proceed has been taken by the police;
(b) the provision of legal advice to the police, as and when requested, on matters relating to the prosecution of offences; and
(c) the provision of Advocates in the Magistrates Courts in all cases where proceedings are commenced by the police (apart from guilty pleas by letter under section 1 of the Magistrate's Courts Act 1957, which only requires someone to read out the statement of facts) and the briefing of Counsel in all cases tried on indictment which are not the province of the Director of Public Prosecutions."

A central feature of the Commission's proposals was the division of functions between the police and prosecutor. The Commission wished to secure that :

"... after a clearly defined point during the preparation of a case for trial and during its presentation at trial someone with legal qualifications makes the variety of decisions necessary to ensure that only properly selected, prepared and presented cases come before the court for disposal; and to do that without diminishing the quality of police investigation and preliminary case preparation and without increasing delays"

To achieve this the Commission proposed to :

"... leave with the police complete responsibility for investigating offences and for making the initial decision whether to bring the matter before a court (that is, ... whether to charge or to apply to the court for issue of a summons or warrant of arrest), or to take no proceedings. It also includes the decision whether to caution as an alternative to prosecution, ...."

Once the initial decision had been taken the case would be within the jurisdiction of the court and in the Commission's view this seemed to be the:

"... .clearest point, which, for the purpose of legislation, can be used to mark the division in responsibilities of the police and the prosecutor. After that point the case should become the responsibility of the latter...; he may then on the information before him decide to proceed as charged, to modify or withdraw the charges. In practice there is, of course, a variety of decisions taken as a case is being prepared for trial and is being tried. Those decisions will be for the prosecutor; and it is in that sense he will have responsibility for the conduct of the case once the initial decision to proceed has been taken."

The Report noted that the system was one that depended upon co-operation, with checks and balances operating within a framework in which all were seeking the same objective. In summary there would be "... unity of purpose but independence of responsibility..."

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Page last updated on April 8, 2004