The Failings of the Crown Prosecution Service: A Barrister Writes

by Howard R. Gray

Note: This is a comment on a thread about the defects of the Crown Prosecution Service, but is worth posting in its own right.SIG

Two nuggets of experience about the CPS rather set the scene for what is happening. These took place years ago in the first year or so of the service when the majority of the lawyers were extraordinarily green and frankly of dubious competence in some quarters. I was defending a case when I was given an offer by the prosecution before lunch and it was then summarily withdrawn after lunch upon instructions from the prosecution lawyers “boss”.

Clearly, the lawyers for the CPS were not in full charge of their cases. Has this changed since then? Probably not administrative and political interference was there from day one. This is perhaps one of the most egregious parts of the case against the CPS; prosecutors should be independent of the state and most of all “ministers of justice”. My pupil master now one of her Majesty’s judges made it very clear to me that the role of the prosecutor was foremost to prosecute not persecute and that justice was the primary objective so far is that is possible. If you appear for the state you have a higher duty than just representing the state and that is to ensure justice is done.

This might all seem very old-fashioned but in my experience it was the way it should be done. To drive this point home, if the case for the prosecution is thoroughly defective it is the duty of the prosecutor to offer no evidence and stand the case down, not just please the local police service solicitors and bash on regardless. The CPS is part of the government and thus cannot in any sense of the word be seen as an outside contractor as was the case for prosecutors in the “good old days”. While the original way of doing things may be a model of perfection that wasn’t always achieved it was the least a reasonable aspiration now long lost at the local level in the CPS. One hopes that the justice administration point still exists in the more serious cases.

On another occasion at Wells Street magistrates court the case I was covering was adjourned over the lunch hour and my client skipped bail and did a runner. Nothing unusual in that you would’ve thought, but the CPS practitioner did his pieces in front of me. He poked his finger at me and threatened me with arrest for aiding and abetting the bail breach by my client. Silly sod was so green did not seem to understand that prisoners in court after surrendering to bail come under the control of the prison service not their barristers. Even went further to threaten me with being reported to the Bar Council that I politely pointed out to him was probably defamatory if not just plain stupid.

From day one the CPS has had problems much like the Serious Farce Office and it has evolved into a dubious politically correct organization which of course is no surprise. That the CPS takes against the indigenous population on some mission of supposed justice is par for the course and should surprise absolutely nobody.

What should be done about it? Very simple really, save a bundle of money abolish it. Allow the local police service to hire solicitors and barristers on a case-by-case basis for the prosecution work that they have to undertake of a more serious nature. Petty prosecution work must be returned to the hands of suitable local police officers trained to present court work dealing with the usual daily round of drunks and other minor criminal matters as was the case in years gone by. It worked extraordinarily well and was fast and efficient. Don’t believe the blather that professionalism was needed; the police prosecutors in the main were more than adequate for the job.

The CPS has suffered from political interference and social engineering policy objectives that have no business within such an organization. Of itself it has signally failed to be an impartial prosecution service it has fallen into becoming, from time to time, a persecution service which is grounds enough for shutting its doors.

The work won’t go away; it will just be allocated at lower prices outside the civil service where it deserves to be. The original somewhat privatized method of operating prosecutions worked just fine and never needed the dubious district attorney model for conducting prosecutorial work. It doesn’t work that well here; professional prosecutors develop deep-seated biases about the way they conduct their work. There is a blending of prosecution and persecution which is totally inappropriate.

8 responses to “The Failings of the Crown Prosecution Service: A Barrister Writes

  1. djwebb2010

    That’s interesting – the CPS should be closed down, but I am wondering what Howard Gray’s view of the English constitution is. This has been a controversial issue here, with the Freemen on the Land, and I still feel that there is no constitutional validity to the way we are governed, although as Sean Gabb has pointed out, the authorities have the power now and it is their interpretation that is being enforced and so contriving rival interpretations based on Common Law is not currently achieving anything. I think it could achieve something if it became politically significant that many English people were dubious of the legality of the current administrative framework, so, in the end it is question of politics, not law as such, right?

  2. Stephen Moriarty

    I find the “public interest test” as to whether a prosecution should proceed very worrying. It seems to allow mob-rule, in that intimidation can go unprosecuted if the state is in sympathy with those doing the intimidating. Has something like it always existed?

    • Until the middle of the 19th century, most prosecutions were private, and the authorities had limited power to stop them. Until the CPS was set up, most modern prosecutions were carried out by local police forces, which were run by men who had nasty views about sex and porn, but who otherwise had the same views of right and wrong as the rest of us.

  3. I would definitely like private prosecutions to be easier, and to give the authorities no way to stop them.

    • That would require a radical overhaul of the crimina law as it stands. There are many recent criminal laws that are only bearable because they are occasionally and selectively applied. Of course, overhaul and privatisation should go together. We should not have laws that cannot be consistently enforced.

  4. westernesse

    It was hard enough to get the power to prosecute taken away from the police. Power divided is preferable to powers united.


  5. The police power to prosecute was at the lower level only in the magistrate’s courts.
    Originally prosecution was to remain in the hands of independent barristers but that has now started to break down. Crown court cases are now being handled by salaried barristers who now become intimately linked to the political process in the background of government service as is the case here in the USA. This development is not to be encouraged, this is the route to criminal prosecutions being tainted with politics more so than is now the case.
    Simply put, prosecution is now becoming the province of a monolithic organization the CPS much like the DA system here in the states suffused with political interference and political correctness which I predict will now be much worse as salaried prosecutors take the helm in increasing numbers as they will.