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Arrest, charge and prosecution*

Published online by Cambridge University Press:  02 January 2018

Andrew Sanders
Andrew Sanders*
Affiliation:
University of Birmingham
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Extract

Part I of the Prosecution of Offences Act 1985 has established a Crown Prosecution Service for the whole of England and Wales. The Service is, inter alia, responsible for the conduct of all police prosecutions (except minor motoring matters) following the institution of proceedings by the police. Police officers no longer present their own cases in court, but the new Service is not intended merely to replace them with professional advocates. The White Paper on which the Act is based declared that an independent prosecution service should be established. This was in order to give crown prosecutors complete freedom to veto, or to modify, the initial decison of the police to prosecute.

Type
Research Article
Information
Legal Studies , Volume 6 , Issue 3 , November 1986 , pp. 257 - 271
Copyright
Copyright © Society of Legal Scholars 1986

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Footnotes

*

I would like to thank all the friends and colleagues who have helped me at various stages in this work, in particular Roger Leng, Owen Lomas, and Ian Scott. I am also grateful to Professor Andrews for his comments on an earlier draft of this article.

References

1. Section 3(2)(a).

2. Home Office, An Independent Prosecution Service for England and Wales (1983) Cmnd 9074, para 14.

3. [1982] 2 All ER 963 at 971.

4. R v Norfolk Quarter Sessions, ex p Brunson [1953] 1 QB 503 at 510.

5. Royal Commission on Criminal Procedure, The Law and Procedure (1981) Cmnd 8092–1, para 175.

6. See, for instance, the Magistrates' Court Act 1980, s 9.

7. See n 3 and n 4, and accompanying text.

8. See n 4 and accompanying text.

9. A. V. Sheehan, Criminal Procedure in Scotland and France (1975), pp 31–66.

10. P. Devlin, The Criminal Prosecution in England (1960).

11. J. Langbein ‘The Origins of public Prosecution at Common Law’ [1973] 17 Am JLH 313. The terms ‘inquisitorial’ and ‘accusatorial’ are used here largely to indicate polar approaches to criminal justice. There is no intention here to take sides on the controversy over whether or not these inquisitorial elements were grafted onto a hostile English system. See Langbein, op cit, at p 323. If they were, however, as deep-rooted as Langbein suggests, it is not surprising that the shift to accusatorial styles later in the nineteenth and twentieth centuries did not entirely eradicate inquisitorial elements

12. T. Plucknett, A Concise History of the Common Law (5th edn, 1956), p 432.

13. J. H. Baker ‘Criminal Courts and Procedure at Common Law 1550–1800’, in J. S. Cockburn (ed) Crime in England 1550–1800 (1977).

14. R v Hughes (1897) 43 JP 556.

15. John Lewis v Tims [1952] AC 676.

16. If the public/private distinction relates to the initiation of prosecution, then ‘police prosecutions’ taken over by crown prosecutors remain as ‘private’ now as they were before the Act. Since the police continue to institute proceedings they are, for many purposes, still the ‘prosecutors’. See H. Tomlinson and R. Clayton, ‘Police Malice and Crown Prosecutors’, 82 Law Society's Gazette (4 December 1985) 3505.

17. Town Police Clauses Act 1847, s 28. See eg Wills v Bowley [1982] 2 All ER 654.

18. Parke B in Timothy v Simpson [1835] 1 Cr M & R 757 at 763, 149 ER 1285 at 1288 (quoted with approval by Bankes CJ in Trebeck v Croudace [1918] 1 KB 158 at 167).

19. See eg Archbold (17th edn, 1871) Book 11, p 696.

20. Metropolitan Police Act 1829, s 7.

21. T. Plucknett, op cit n 12 above; P. Devlin The Criminal Prosecution in England (1960), p 7.

22. An additional reason might be that the main role of the early police forces was to maintain public order. (M. Brogden The Police- Autonomy and Consent (1982)). To carry out this role the police need to remove ‘offenders’ from the streets. Arrest and charge is more suitable for this than is information and summons, for it has an instant effect; arrest and charge is a resource in order maintenance. See, further, A. Sanders ‘Prosecution Decisions and the Attorney General's Guidelines’ [1985] Crim LR 4.

23. Criminal Statistics, 1981 (Source: Home Office Statistical Department).

24. Royal Commission on the duties of the Metropolitan Police Report (1908) Cd 4156, Part 1, III, paras 10–12.

25. Subject to s 23 of the Prosecution of Offences Act. See n 28 and accompanying text.

26. Hill v Anderton [1982] 2 All ER 963 at 971.

27. Rv Commissioner of the Police, exp Blackburn (no1) [1968] 2 WLR893. The obiter reserving ultimate accountability to the courts has been held to not apply to individual cases: R v Chief Constable of Devon and cornwall Constabulary, ex p CECB [1981] 3 All ER 826.

28. R v Broad (1979) 68 Cr App Rep 281; R v Redbridge Justices, exp Sainty (1981) RTR 13. The situation, particularly in magistrates' courts (see, for instance, R v Canterbury and St Augustine Justices, ex p Klisiak [1982] QB 398) has not been entirely clear. Now, the Prosecution of Offences Act gives crown prosecutors a limited power to ‘discontinue’ proceedings without the consent of the court (s 23). This, however, does not affect the basic principle: police officers still have no right to discontinue the proceedings which they initiate; and defendants may refuse to accept the discontinuance, in which case the charges must be heard or dismissed by the court.

29. Report (1908) Cd 4156, p 75.

30. In fact this did happen once (prior to the introduction of the Crown Prosecution Service) in a sample of 1,200 cases collected in the course of an ESRC project on prosecutions. See my ‘Police Charging and the Prosecution of Offences Act’ (1985) 149 JP 662.

31. Mohamed Amin v Bannerjee [1947] AC 322; Austin v Dowling (1870) 5 LRF'C 534.

32. Casey v Automobiles Renault (1965) 54 DLR 600. For a full discussion see H. Tomlinson and R. Clayton, ‘Police Malice and Crown Prosecutors’ n 16 above, and my ‘Malicious Prosecution: Further Problems’ 83 Law Society's Gazette (28 May 1986) 1626.

33. [1979] RTR 155.

34. Per Lord Widgery CJ at p 160.

35. Ibid.

36. [1985] Grim LR 310.

37. Explosive Substances Act 1883, s 2.

38. Administration of Justice Act 1982, s 63(1).

39. Section 6.

40. Transcript, Court of Appeal (Criminal Division), 4 December 1984, p 9 (kindly supplied by the DPP's Department).

41. Transcript, p 10.

42. Op cit. See n 4 and accompanying text.

43. [1982] 2 All ER 963.

44. Brentford Justices, if any sense can be made of it at all, must presumably be taken to have held that informations were laid when proceedings were instituted, ie at the time of charging.

45. P. Devlin, The Judge (1979).

46. This dilemma was often recognised by police officers in the ESRC project described earlier. See A. Sanders, ‘Towards an Independent Prosecutor? (1984)’9 Holdsworth LR 113.

47. P. Devlin, The Judge (1979), p 82.

48. Royal Commission on Criminal Procedure, Report (1981), para 7.8.

49. Ibid, para 4.74.

50. Home Office, Report of an Inquiry, [Fisher Report on the murder of Maxwell Confait (1977)]. See discussion at n 56 and accompanying text.

51. Home Office, An Independent Prosecution Service for England nad Wales (1983) Cmnd 9074. Also see Lord Elton (Home Office) Introducing the Second Reading of the Bill (as it then was) in the House of Lords (17 May 1985).

54. Police Complaints Board, Triennial Review, Cmnd (1980) 7966.

53. These powers, enacted by the Police and Criminal Evidence Act, 1984, Part IX, are actually less extensive than the Board itself recommended.

54. S. Moody and J. Tombs, Prosecution in the Public Interest (1982).

55. M. McConville, ‘Prosecuting Cases in England and Wales: Reflections of an Inquisitorial Adversary’ [1984] 6 Liverpool LR 15.

56. J. Baxter and L. Koffman, ‘The Confait Inheritance—Forgotten Lessons?’ Cambrian LR [1983] 11.

57. Home Office, op cit n 50, para 2.29–2.46.

58. M. Weatheritt, Survey of Prosecuting Solicitors Department (1981, HMSO); Prosecuting Solicitors Society, Evidence to the Royal Commission on Criminal Procedure (1979).

59. I have discussed these issues at greater length in ‘An Independent Crown Prosecution Service?’ [1986] Crim LR 16.

60. See, for instance, Police and Criminal Evidence Act 1984, ss 40–44.

61. See R. Baldwin, ‘Police Discretion and Law Reform’ in E. Alves and J. Shapland (eds), Legirlation for Policing Today: The Police and Criminal Evidence Act (British Psychological Society, 1985), for a trenchant critique of these provisions of the Act.