Taking Back Control of the Prosecution Process

Barry Godfrey | 28 February 2023

The backlog in the courts is stark. Approximately 60,000 cases await trials in the Crown Courts and over 350,000 in the magistrates’ courts. In addition to austerity measures and covid, some Chief Constables are now pointing to the Crown Prosecution System (CPS) as a major part of the problem, in particular the delays that result from a convoluted and slow charging system. At the moment, following a police investigation, the police can apply to the CPS for a charge to be laid against an individual (sometimes through local offices but usually on the phone via CPS Direct). If this does not happen within 24 hours of arrest, suspects are ‘released under investigation’. The barrier to obtaining a charge is perceived to be a high one, and some officers may feel that the CPS are unnecessarily risk averse, particularly in cases of serious sexual violence. The police forwarded 1,300 cases of suspected rape to the CPS in the first quarter of 2023, an increase of 10%. Approximately a third are awaiting a charging decision, and the average time from application to charge by the police to a final decision is nearly six months. For vulnerable victims, in particular, such long delays can result in evidence being lost/destroyed, and victims becoming disengaged.

In February 2023 the Chief Constables of three metropolitan forces wrote to the Guardian explaining that they wanted the decision to charge suspects placed back into police hands. This would turn the clock back to before the creation of the CPS in 1984, to a period when the police sergeants would prosecute cases before the magistrates (police appointed council would appear before judges). As the Chief Constables stated:

“if we allow the police to charge more offences we might also start providing swifter justice. Returning to the old ways of doing things represents a return to common-sense policing.”

The form of police prosecution they hark back to was, however, not deeply embedded historically.  Throughout the first half of the nineteenth century the actions of victims had been the motors for prosecutions. An individual was responsible for taking their complaint to magistrates (the police aided the victim by arresting the accused and the courts then decided guilt or innocence). From the 1860s onwards, however, as society became ever more urbanised, towns saw more drunkenness, fighting, and ‘obscene behaviour’. With individuals unlikely to prosecute these sorts of crimes, the police undertook more and more prosecutions themselves. The change was dramatic. In 1880, 80% of prosecutions were undertaken by individual complainants, by 1920, 80% were undertaken by police. An account of the importance of this change in bringing peace to the streets of Birmingham is documented in Carl Chinn’s The True History of the Peaky Blinders.  

This is the sort of system which Chief Constables may be dreaming of now, but the impact may be different from the one they imagine. The police takeover of prosecution, historically, did not increase efficiency, number of charges, or improve the conviction rate. Instead, local police cultures shaped which prosecutions went to the courts and which did not. If a constable felt that an offence was not worth pursuing, nothing happened. With this system in place, some communities and people had their concerns taken seriously whilst others were dismissed, and, overall, the number of charges fell. Is this likely to happen today? The threshold tests applied by the CPS (assessing whether a case likely to result in conviction, and also whether it is in the public interest to prosecute the case) will need to be applied by police officers if postcode justice is to be avoided, and inequalities of local practice to be prevented from creeping in.

Will the charging process be speeded up? The police are frustrated by the length of time it takes to obtain a charging decision and would hope that their in-house system could do better, but underneath the speed argument may be the desire to obtain more charges than they otherwise would. In 2015, 16% of all crimes resulted in a charge or summons to court; by 2023 it had fallen to 5.6%. So, what may lie beneath the Chief Constables’ proposal is their frustration with low charge rates, particularly for certain crimes – and the fact that they and not the CPS are usually blamed by the public and the government for these low rates (and, by implication, for not caring about victims of crime). It remains to be seen whether the Chief Constables are intending to apply a different set of threshold test, or to apply the current tests more quickly, so as to speed up the process. The proposals are in early stages so far and may be intended to raise the issue rather than overturn the whole system, but lawyers, politicians, and sentencers will be following this debate very closely.

In the meantime, the police seem to be able to skip the whole prosecution and court system to impose their own punishments through the procedure termed ‘Out-of-court-disposals’ (OOCD) which has been in place since 2008. This diverts offenders away from formal prosecution have been in place for over a decade, and most recognise that they are an appropriate way of lessening the burden on the courts, while appropriately dealing with low-level crimes. They have been especially useful in curbing the criminalisation of young people. Conditions can be applied, usually in consultation with victims and where appropriate youth services. These include writing letters of apology, making restitution, paying for damage, and so on. However, further changes in 2023 mean that adults who are cautioned by police could additionally be fined or serve up to 20 hours in unpaid work. These sorts of penalties have previously only been open to judicial sentencers. The imposition of unpaid work, admittedly for usually many more than 20 hours, has been previously reserved for more than low-level offending. It would not normally be imposed without a report from the probation service.

The new system by-passes the CPS, the probation service, and the courts. Many will see the point in allowing the police the discretion to charge, so long as conviction rates do not fall as a result, but the more contentious rights of the police being allowed to impose unpaid work and other punishments seems to have slipped by with very little comment.

OOCD, speedier charging decisions (with either police or CPS acting as gatekeeper), and other innovations may and should bring swifter justice for more victims and appropriate punishments for wrongdoers, however, they cannot be at the expense of bypassing the established procedures and protections offered by public interest threshold tests or judicial processes.

• Tags:
• Criminal justice and law reform
• Policing and emergency services

About the author

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Barry Godfrey is Professor of Social Justice at the University of Liverpool and Deputy Chair of the Cheshire magistracy. He has published over twenty books on crime and offending. He works on modern high harm offenders in partnership with various police forces; and carries out historical research on crime and disadvantage in Australia, North America, China, the Netherlands and Kazakhstan. His latest co-authored book is Penal Servitude: Convict and long-term imprisonment, 1853-1948 (2022).