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The Crown Prosecution Service - partial or impartial?

The Crown Prosecution Service - partial or impartial?



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Published by factuk
In this article George Jensen discusses whether or not the Crown Prosecutors Code is being applied fairly in cases of alleged historical child abuse in UK childrens homes and residential settings
In this article George Jensen discusses whether or not the Crown Prosecutors Code is being applied fairly in cases of alleged historical child abuse in UK childrens homes and residential settings

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Categories:Types, Research
Published by: factuk on Jan 05, 2009
Copyright:Attribution Non-commercial


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THE CODE FOR CROWN PROSECUTORSIs it being applied fairly ?
An article byAn article byGeorge JensenGeorge Jensen
I have recently obtained copies of theCrown Prosecution Service Code for CrownProsecutors.It makes interesting reading . The code states that …
“Crown Prosecutors must be fair, independent and objective. It is the duty of the Crown Prosecutors to review, advise on and prosecute cases, ensuringthat the law is properly applied, that all relevant evidence is put before thecourt and that obligations of disclosure are complied with, in accordance withthe principles set out in this code” 
Before a prosecution can take place two test have to be met. These are referred to asthe
evidential test
and the
public interest test
. The first stage is consideration of the evidence. If the case does not pass the evidentialstage it must not go ahead no matter how important or serious it may be. If the casedoes pass the evidential stage, Crown Prosecutors must proceed to the second stage anddecide if a prosecution is needed in the public interest.
The Evidential Test
Crown Prosecutors must be satisfied that there is enough evidence to provide a ‘realisticprospect of conviction’ against each defendant on each charge. They must consider whatthe defence case may be, and how that is likely to affect the prosecution case.A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates or judge hearing a case alone, properly directed in accordance with the law,is more likely than not to convict the defendant of the charge alleged. This is a separatetest from the one that the criminal courts themselves must apply. A court should onlyconvict if satisfied so that it is sure of a defendant’s guilt.When deciding whether there is enough evidence to prosecute, Crown Prosecutors mustconsider whether the evidence can be used and is reliable.
“Crown Prosecutors must consider whether the evidence can beused and is reliable; is the witness’s background likely to weakenthe prosecution case? For example, does the witness have any motive that may affect his or her attitude to the case, or a relevant  previous conviction? Are there concerns over the accuracy or credibility of a witness? Are those concerns based on evidence or simply information with nothing to support it? Is there further 
Page 1
Falsely Accused Carers and Teachers
Fighting injustice – lobbying for change
evidence which the police should be asked to seek out which may support or detract from the account of the witness?
(para 5.4)
The Public Interest Test.
 The section on public interest test begins with a warning -
In 1951, Lord Shawcross, who was then Attorney General, made the classicstatement on public interest, which has been supported by Attorneys Generalever since: “It has never been the rule in this country — I hope it never willbe — that suspected criminal offences must automatically be the subject of  prosecution”. (House of Commons Debates, volume 483,column 681, 29 January 1951.)
It goes on to say …
The public interest [test] must be considered in each case[and in respect of each alleged offence] where there is enough evidence to provide a realistic prospect of conviction. Although there may be public interest factors against  prosecution in a particular case, often the prosecution should go ahead and those factors should be put to the court for consideration when sentence isbeing passed. A prosecution will usually take place unless there are publicinterest factors tending against prosecution which clearly outweigh thosetending in favour, or it appears more appropriate in all the circumstances of the case to divert the person from prosecution (Para 5.7).
Crown Prosecutors must balance factors for and against prosecutioncarefully and fairly 
. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or thecircumstances of the suspect. Some factors may increase the need to prosecute but others may suggest that another course of action would bebetter. (Para 5.8).
It is almost always held to be in the public interest for a public official or a person in aposition of trust to be prosecuted when the evidential test is met.Given the code’s statutory status and the importance attached to it one would expectthe CPS to ensure that the evidential test is applied rigorously in all cases. Myexperience based on Court transcripts and documentary evidence suggest that this isnot the case as the following examples, which are typical of the vast majority of socalled historical child abuse that have been brought before the courts over the past tenyears, and for which many men are serving long prison sentences.
Example 1
Operation Goldfinch
in South Wales one individual was originally charged with 98offences, by the time the case came to court the list had been reduced to 40. The trialwas halted by the Judge Mr Justice Curtis when he threw out two thirds of the remainingcharges referring to the complainant as “a fantasist “and “quick to make seriousallegations that could not possibly be true”Finally the prosecution conceded that they had no case to answer and withdrew allremaining charges.
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How does this relate to the statement by Government that sufficiently robust reviews arecarried out in order to avoid weak cases reaching court? How does it satisfy theEvidential Test above? Was this reliable evidence? Was this a credible witness?
Example 2
In another case in the same operation by South Wales police three complainants werealleging abuse by one person consisting of 17 charges. The CPS dropped two of thecomplainants and proceeded with the one but when the case went to court it was part of a case involving two other persons, presumably in the hope that numbers would suffice.It has been argued that such a course of action is intended to reduce cost. It may also beseen as an attempt to create a more complex set of circumstances for the jury to decideupon. The possibility being that the individual jury members might be persuaded by thefact that there appears to be a group of offenders, rather than a number of individualsagainst whom a small number of allegations have been made. This practice has beencommented upon unfavourably by judges sitting in such cases. How this square with theconcept of fairness as stated in the Code for Prosecutors?Dealing with operation Goldfinch, after a court hearing lasting three weeks the juryreturned their not guilty verdict after some thirty minutes. The judge stated …
“Where positive checks could have been made claims could have been proved to be false” ... It has been proved positively that allegations could not have happened” . [The explanations given(in the witness box] fly in the faceof common sense” … evidence wholly nonsensical” … “evidence is tenuous – not capable of belief”.
How does one relate these comments to the requirement for reliable evidence androbust review , the evidential tests and the credibility of witnesses?
Example 3
In a case brought before the Crown Court in Cardiff the defendant was originally chargedwith a series of serious sexual offences against boys, in what was then an ApprovedSchool. The CPS withdrew all charges of a sexual nature when it was made clear to themthat they would be vigorously defended. Finally the case was reduced to three charges of Child Cruelty, the most serious of which was hitting a boy on the posterior with aplimsoll.Despite the acceptance by at least one of the complainants that they had deserved to bepunished and the fact that the incident which took place forty years previously had notbeen an offence at that time, the CPS proceeded with the case. The Judge, Judge WynnMorgan, in his passing sentence said
A conditional discharge is suggested. You have committed no other offencein your life and you are extremely unlikely to do so now ….to have to livewith allegations of this nature at all and certainly for the period of time that  you have, has been a savage punishment, far in excess of that appropriatefor the offences that you have actually committed. For these reasons you willbe discharged.” 
 This case flies in the face of just about every element of the Code for Prosecutors andmust surely cause very considerable disquiet within the CPS. Furthermore it is clear thatthis individual was being tried under contemporary legislation for something which wasnot an offence when the incident occurred.
Some concluding thoughts
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