Committee Reports > List of Committees > Dáil > 1987 > Select Committee on Criminal Lawlessness and Vandalism > Report No. 15 - Proscecution of Offences

APPENDIX C

Royal Commission on Criminal Procedure: Summary and Conclusions on the Prosecution of Offenders

In this part of our report we have considered the existing arrangements for the prosecution of offenders on the basis of the standards of their fairness, their openness and accountability, and their efficiency. We have concluded that there are certain defects which make the case for some change. But we also recognise that change cannot be sudden or root and branch; we must built on existing institutions. And any change must be assessed in terms of its organisational consequences and the resources it will require.

Our proposals build on the changes in the arrangements for prosecution that have been occurring since the Report of the Royal Commission on the Police in 1962. We recommend that there should be no further delay in establishing a statutorily based prosecution service for every police force area. We suggest that the prosecutor should have the title of Crown prosecutor and recommend that the statute should specify his functions; the conduct of all criminal cases once the decision to initiate proceedings has been taken by the police, the provision of legal advice to the police on prosecution matters, and the provision of advocates in the magistrates’ court and briefing of counsel when appropriate. We recommend that the point of charge or issue of summons should mark the division of responsibilities between the police and the prosecutor. The majority of us considers that after that point the latter should have complete discretion to alter or drop charges, but three of us would favour giving the prosecutor the final word on whether to proceed only in respect of the legal elements of the decision, in order to reflect their view that the chief constable is in a better position to take account of other aspects of the decision. The majority thinks that such a distinction should not or cannot be drawn for practical purposes; the relationship between the chief constable and the Crown prosecutor will be no different in principle from that with the Director of Public Prosecutions and the police will continue to have the discretion whether to initiate proceedings.

We recommend that the police should no longer act as advocates in magistrates’ courts. Where peaks occur in workload which cannot be met from the Crown prosecutor’s own staff, he should make use of barristers or solicitors in private practice.

The prosecution service should be locally based, but with certain national features. All but one of us consider that a centralised national system would involve a large bureaucracy and tend to lead to slow and remote decision taking. Any advantages that such a system might have can be effectively achieved with the organisation we propose. A majority recommends that the Crown prosecutor should be accountable to a police and prosecutions authority, a development of the police authority. It should be similarly constituted and have the same territorial basis as the existing police authority. The Crown prosecutor should be accountable to it for the management and resources of his department and the efficiency and competence of his staff. It would not consider decisions in individual cases. Special arrangements will be required for London.

The Minister responsible for the prosecution service should be the Home Secretary or the Attorney General, for each of whom there are strong arguments. Making the Attorney General responsible for it would serve to underline the independence of the service from the police. On advice from a small prosecutions inspectorate, the Minister would set national standards for staffing and review standards of performance. Arrangements for training should be centrally coordinated and funded. We recommend that the prosecution service should be part locally and part centrally funded. The provisions requiring the consent of the Attorney General or the Director of Public Prosecutions to prosecution should be rationalised. The Director will have a vital part to play in the development of the new service and in the promulgation of national guidelines on prosecution matters. His role as a prosecutor will be affected by the establishment of the new service and should be reviewed in the light of experience of its operation. The Home Secretary, as Minister responsible for the police service, should take steps to achieve greater consistency of police practices in relation to prosecution, especially cautioning.

Ministerial accountability to Parliament should extend to those aspects of the prosecution system for which Ministers are responsible: the Home Secretary for the principles on which the police should initiate prosecutions and the development of alternatives to prosecution; and the Attorney General for the ethical and professional standards of local prosecutors and prosecuting policy in general. The Minister responsible for the management of the prosecution service should be accountable to Parliament and should publish the annual reports of the prosecutions inspectorate. The prosecutor will be accountable to the courts for prosecutions which he brings. On balance, the majority of us considers that the Crown prosecutor should not need to obtain the leave of the court to withdraw a charge but he chould be required to notify the court of his action and the reason for it.

The Crown prosecutor should not take over responsibility for prosecutions by official agencies, but he should conduct such cases where the normal practice is for the police to initiate them or conduct them on behalf of the agency. We recommend that the right to apply to bring a private prosecution should be retained, but it should be to the Crown prosecutor in the first instance. If the latter refuses to take the case, the private prosecutor should be able to make an application to a magistrates’ court for leave to commence proceedings himself.

In the light of our proposals for a statutorily based prosecution service we have reviewed the means by which prosecutions are started, the means for ensuring that only adequately prepared cases for which prosecution is justified come to trial and the procedures governing their preparation.

We see no case for retention of the present different procedures for starting prosecutions (by charge or summons). We recommend a single procedure, called an accusation, which should not require the consent of the magistrates in cases initiated by the police or other official prosecutors.

There should be agreed and consistent criteria for the exercise of the discretion to prosecute. The criteria cannot be exhaustively enumerated; they must take account of varying circumstances. We would recommend the adoption for all prosecutions of the test at present applied by the Director of Public Prosecutions. The prosecutor should have to satisfy himself that there is a reasonable prospect of conviction before going ahead with the prosecution: the existence of a prima facie case would not of itself be sufficient.

We endorse the principle now established in statute that the requirement for disclosure by the prosecution should also apply to cases tried in the magistrates’ courts and recommend a framework for facilitating such disclosure. At the Crown Court, disclosure of material additional to that at present required should be the responsibility of the prosecutor. Subject to a discretion to withhold sensitive material, he should be under a duty to copy or make available statements or documents having some bearing on the offences charged or the surrounding circumstances of the case. We rule out any formal requirement of general disclosure by the defence, on grounds both of principle and of practicability, but recommend the extension of the provisions relating to the notification of alibi to certain other defences.

The formal committal of cases for trial seems to us unnecessary. But some procedure is required where there will be delay in bringing a case to trial in which the defendant wishes to challenge the justification for prosecution. That applies as much to cases tried in magistrates’ courts as in the Crown Court. A new procedure should be devised to enable the defendant, whether represented or not, to make a submission to the magistrates of no case to answer in all either way or indictable cases, if the delay before trial will exceed a specified period, which might be set at eight weeks. Other ways of improving the procedures for preparing a case for trial were put to us in evidence, but for the various reasons given in the body of the report we have not considered these in any detail. It would, in our view, be more sensible to allow the new arrangements for prosecution to settle down before any further wide examination of these other matters is undertaken.