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Crown Prosecution Service

Volume 130: debated on Thursday 31 March 1988

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1.30 pm

I am grateful for the opportunity to initiate this Adjournment debate and I am grateful to the Attorney-General for attending to respond to it.

It is unusual for me to be able to debate legal matters because I act as spokesman on environmental matters for my party. I am grateful to take a break from that activity, particularly as it is Maundy Thursday, which is one of the days in the legal year when the Attorney-General, I and others scan the newspapers to see who have been made Queen's Counsels. We congratulate those who have been appointed.

I entitled my application for a debate "the prosecution policy of the Crown Prosecution Service in cases involving death." The cause for my concern dates back to when I was elected to the House, and is coupled with my experience as a practising member of the Bar. My concern was how decisions to prosecute in the name of the Crown on behalf of the public were taken in particularly important cases.

The three cases that have specifically come my way relate to three young men from south London who were killed or died in dubious circumstances as a result of which criminal proceedings were considered. The first case concern a young man called David Sibun, who was assaulted on 1 January 1984. He was a neighbour of mine in Lynton road, Bermondsey, and I knew him and his family. He died in hospital having spent a short period in a coma. Criminal proceedings flowed from the incident. Pleas were accepted by the Director of Public Prosecutions to charges of assault and affray, and two young men were convicted. At that time the Attorney-General was the Solicitor-General. He did me the courtesy of allowing me to see him about the matters arising from that case, such as whether more substantial charges should have been brought, which was what I was seeking to persuade him about, so that, as a Law Officer, he could direct the DPP to prefer more substantial charges, given that the young man died following the assault and would not have died had it not been for that assault.

The second case concerned another young Bermondsey man, Mark Hogg. On 5 October 1985 he died in hospital in Exeter. He had been a prisoner in Exeter prison and had escaped while being transferred to that prison from Yeovil. He subsequently became ill and died in strange circumstances. His case was the subject of the longest inquest in the history of English criminal law and the result was an open verdict. That raised questions whether charges should have been preferred, although matters are still being considered by solicitors and proceedings might yet be taken, but they will probably be private proceedings.

The third case concerned the death on 29 June 1986 of another young man from south London called Robert McHayle. Last Saturday, a private summons was issued. The case is now sub judice, so it would be wrong for us to debate the issues and evidence until the matter has been resolved. Therefore, I will try to steer well clear of those matters while raising the general concerns that flow from the three cases and from the policy as a whole.

I think that I can rightly give the facts of the case concerning this young man, to complete the picture. Robert McHayle, who was 20 years old, was stabbed to death on 29 June 1986. A charge was brought by the police in respect of another young man from south London. After the investigation, the charge was not proceeded with, the inquest was reopened and, as a result of the inquest, a verdict of unlawful killing was reached. The unusual factor was that the coroner asked that the police reexamine the case with a view to proceeding with a charge. I do not propose to go any further. The matter is now potentially back before the courts, with the prosecution being taken privately and not by the Crown Prosecution Service.

The Attorney-General will no doubt remember that there was a substantial public interest, and almost an outcry, at a case in Scotland when the hon. and learned Member for Perth and Kinross (Mr. Fairbairn) was a Law Officer. He decided not to prosecute in a rape case, but a private prosecution, which secured convictions, was taken out. That caused substantial public interest because it raised the same issue. Does not the need for a private prosecution, and the fact of a subsequent conviction, suggest that there should have been a public prosecution and that people guilty of serious offences should have been prosecuted? These three cases of young men from south London all resulted in deaths and the debate is limited to that issue.

The rules, as far as they exist, are clear, in the sense that there is, and has always been, a code governing prosecuting on behalf of the Crown and it is now governed, as the Attorney-General will no doubt confirm, by section 10 of the Prosecution of Offences Act 1985. Section 10(2) provides that a code should be attached to the annual report of the Director of Public Prosecutions to the Attorney-General. One such report was produced last August.

I wish to examine not the way in which the evidence in any of the three cases was considered, but the way in which decisions are generally made about such matters. Does the Attorney-General agree, as many much more learned members of the legal profession than I have argued, that there should be an opportunity for debate, annually or biannually, in the House on the code and on another document, which is not in the public domain in the same way — the manual of policy and practice governing Crown prosecutions?

We often have the opportunity to debate such codes of practice — for example, that for local government. A substantial public interest would be served if the House periodically debated these matters, so that concerns about the way in which prosecutions on behalf of the public are carried out can be subject to scrutiny here and we can helpfully advise Law Officers of the Crown, officers under them and holders of public office, such as the Director of Public Prosecutions and the head of the Crown Prosecution Service, of the view of the legislature. That is my first specific request. That would be beneficial, and there is considerable demand for such a move.

My second request is to ask the Attorney-General whether he can help the House to identify the level at which decisions about whether to prosecute are made in cases involving death. I would argue that it is right and fair, and is seen to be so, if decisions on such cases are made at the highest level—by which I mean that, after advice has been sought in the normal way from the Treasury counsel, the DPP himself reviews the case. Cases that result in death are potentially in the category of the most serious crimes, and should be treated with appropriate seriousness by those to whom we entrust responsibility. It would be helpful if the Attorney-General could tell us about the level at which decisions are made in different types of case.

Thirdly, there is the ability to review initial decisions. That, I suggest, can be done in either of two ways: when there is specific cause for review, they can be put into the public domain—when, for example, a coroner asks for that to be done in his statement, summing up or comments after an inquest verdict; or the police can ask for it to be done. There are, of course, provisions for discretion to take account of the public view, but I ask for a specific procedure whereby it can clearly be seen that a review is taking place. That would be either at the instigation of the DPP, the Attorney-General or the Solicitor-General, as the code would provide, or by application to the courts from someone who considered that the proper way to proceed. It would be a form of judicial review. That, I think, would alleviate the concern of my constituents, the family of the deceased David Sibun, that the case had not been heard.

I should like briefly to explore a fourth issue: the tests that are used. There are two tests—the test that the evidence is sufficient, and the test that the matter is in the public interest. It is clear from the code that the Crown prosecutors have substantial discretion, and I do not quibble with that. There must be a realistic prospect of conviction. But paragraph 8 of the code states:
"The factors which can properly lead to a decision not to prosecute will vary from case to case, but broadly speaking, the graver the offence, the less likelihood there will be that the public interest will allow of a disposal less than prosecution, for example, a caution."
I feel that there should be a possibility in the second test —the public interest test—that, when death has resulted, the balance of the moment — generally a better-than-evens prospect of a conviction, in the public interest and on the evidence—should be reviewed to ensure that the public interest is served. The fear of possible additional evidence—especially after an inquest—or a feeling by the family of the deceased that there has not been enough inquiry into matters that concern them should be brought before the courts and seen to be reviewed.

One of the problems is that in any criminal case dealt with by the police and the Crown Prosecution Service the prosecution is by definition out of the hands of private citizens, be they family or other. Those personally affected feel excluded, and often are excluded in practice.

I feel that if, after the series of events that I have described, a decision is made to issue a private prosecution and a summons is sought and granted—as in the case that has prompted me to speak today — specific consideration should be given by the Attorney-General or the Solicitor-General to whether the case should be taken over, as is perfectly permissible, on behalf of the public, so that the prosecution becomes a public prosecution. There are practical reasons for that; not least the cost of pursuing a private prosecution, which can be considerable and often prohibitive. Once it has been decided that a summons is acceptable, and the summons is issued, the matter should normally go into the public domain, subject to clearly certified exceptions.

I ask the Attorney-General to consider whether he or, by direction, the head of the Crown Prosecution Service will consider taking the McHayle case into the public domain and prosecute on behalf of the public for the convenience of both the public and of the family of the deceased.

1.45 pm

I congratulate the hon. Member for Southwark and Bermondsey (Mr. Hughes) on his success in the ballot, and especially upon the careful and reasonable way in which he dealt with such important and difficult subjects. In some cases, they occasion deep anxiety and strong feelings among our constituents, and they need to be ventilated. They must always be addressed with the greatest care and sensitivity by those who have jurisdiction over them.

Three questions are relevant to my reply. First, what criteria does the Director of Public Prosecutions and, through him, the Crown Prosecution Service apply in deciding whether to institute or to continue criminal proceedings? Secondly, when, in the public interest, should cases be brought before a court by the prosecuting authorities—notwithstanding that they reckon that there is no realistic prospect of conviction? Thirdly, in what circumstances and on the basis of what criteria should the Director of Public Prosecutions intervene and assume responsibility for the conduct of a private prosecution?

The hon. Gentleman referred to the code for Crown prosecutors, and in recent months I have referred to it on a number of occasions in answer to parliamentary questions. As it states in its introductory paragraph, it is:
"A public declaration of the principles upon which the Crown Prosecution Service will exercise its functions."
That code reflects the guidelines published by my predecessor, now Lord Havers. He was the first Attorney-General to publish the criteria upon which prosecuting decisions were taken by him, and which he recommended to all prosecuting authorities.

That code is now issued pursuant to section 10 of the Prosecution of Offences Act 1985. It is included in the annual report which the director makes to me under the Act, and which is laid before Parliament. There is a copy of the code in the Library. It makes it perfectly clear that the Crown prosecutor must ask himself two basic questions, as the hon. Gentleman correctly said, before deciding whether to institute or to continue criminal proceedings. The first is, is the evidence sufficient? Secondly, does the public interest require a prosecution?

It is important to note the order in which those questions are posed. It is fundamental to our system of criminal justice that a person should not be made to stand trial unless there is a sufficiently strong case against him before the proceedings are commenced. It is an important rule of fairness and of practice that someone is not made to stand trial merely because, for example, some might like to see him in the dock, no matter how much sympathy that feeling might reasonably attract. Prosecutions are not, and should not be, instituted simply to clear the air.

The sufficiency of evidence criterion has long been part of our criminal process. It has been explained and described in different ways at different times. In recent years it was expressed thus:
"Whether a reasonable jury, properly directed in the law, would be more likely to convict than to acquit."
In layman's terms, that was sometimes described as the "51 per cent. rule".

The test is now expressed another way, and again I quote fom the code:
"A prosecution should not be started or continued unless the Crown Prosecutor is satisfied that there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by an identifiable person. The Crown Prosecution Service does not support the proposition that a bare prima facie case is enough, but rather will apply the test of whether there is a realistic prospect of a conviction. When reaching this decision the Crown Prosecutor as a first step will wish to satisfy himself that there is no realistic expectation of an ordered acquittal"—
that is ordered by the court—
"or a successful submission in the Magistrates' Court of no case to answer. He should also have regard to any lines of defence which are plainly open to, or have been indicated by, the accused and any other factors which in his view would affect the likelihood or otherwise of a conviction."
The code expands on this, in setting out a number of matters to which the Crown prosecutor should have regard when evaluating the evidence. They all go towards that first essential decision: is there a realistic prospect of a conviction?

Having satisfied himself that the evidence can justify proceedings, the Crown prosecutor moves then — and only then— to the second question : does the public interest require a prosecution? I have already this year had cause to remind the House of the universality of that test. The code rightly pays great attention to that important question. It sets out a number of factors that might properly be taken into consideration in a list that is exemplary but not exhaustive.

The hon. Member for Southwark and Bermondsey referred to offences resulting in death. It is hard to conceive of circumstances in which it would not be in the public interest to prosecute a defendant for murder, provided that there was a realistic prospect of conviction. As I understand it, that matter is not in issue today. The real question is how that first test is satisfied.

The Crown Prosecution Service was set up to ensure that decisions in the great majority of criminal cases were taken by qualified lawyers, independent of the police. Members of the service are charged with the duty to ask themselves those two essential questions to which I have referred. The hon. Gentleman asked whether there should be circumstances in which prosecutions might be allowed to go ahead notwithstanding the fact that the Crown prosecutor is not satisfied that there is a reasonable prospect of conviction.

I do not think that that would be compatible with the purposes for which the Crown Prosecution Service was established. We have a Crown Prosecution Service to ensure that all cases are properly evaluated and that only those likely to result in a conviction are allowed to proceed. The exercise of the power to bring criminal proceedings against someone can be highly invasive of the citizen's liberties. It is not to be undertaken lightly; it must be undertaken upon the application of established principles by a trained mind, and never merely in response to clamour.

I am coming to the specific questions that the hon. Gentleman asked. First, he asked in what circumstances the service would intervene and assume responsibility for the conduct of proceedings that had been started privately. There is no straightforward answer to that question. Each case, inevitably, must be judged on its own facts. The director has the power to take over the conduct of such proceedings at any time, should he think it appropriate, but, at the same time, section 6 of the Prosecution of Offences Act 1985 expressly reserves the right of private citizens to institute criminal proceedings.

There may be circumstances where, even though there would appear to be a realistic prospect of a conviction, it would not be in the public interest for a prosecution to proceed. In such circumstances, the director might well assume the responsibility for those proceedings and discontinue them. Examples of such circumstances are set out in the passage of the code to which I have referred. Moreover, in rare circumstances I might myself enter a nolle prosequi and bring such proceedings to an end.

However, I do not think that the hon. Gentleman is concerned with such cases today. Where the director's decision not to prosecute or to discontinue proceedings is based solely on the sufficiency of the evidence, it would be highly unlikely that he would intervene so as to discontinue a subsequently instituted private prosecution. There may be cases of such prosecutions where examining justices consider that there is a case on which the defendant should be committed for trial at the Crown court. In such circumstances it would not be unusual for the director to assume responsibility for the conduct of those proceedings and to prosecute them in the Crown court, notwithstanding his own earlier decision not to prosecute.

The hon. Gentleman asked whether, in a case where death has resulted and a private prosecution has been instituted, the almost invariable rule ought to be that the director should take over the proceedings. In those circumstances, the question whether the prosecution should be taken over by the director is always very carefully considered. There are substantial advantages in the director taking over such a prosecution, which I do not need to spell out here; in many cases, they are obvious. However, there may be rare occasions when the director, having taken the decision that the evidence is insufficient, will not wish to take it over. Therefore, I cannot accede to the proposal that it should be an almost inevitable rule, but I assure the hon. Gentleman that most careful consideration is given to that question in the circumstances that he posed. It is quite right that that practice should continue.

The hon. Gentleman asked whether there ought to be an opportunity for an annual or regular debate on the application of the code. I am always happy to be given an opportunity to give the facts about the performance of the Crown Prosecution Service. The hon. Gentleman knows that the allocation of parliamentary time is for my right hon. Friend the Leader of the House, not me, but when an opportunity is offered I always find it valuable to tell the House about what the Crown Prosecution Service has been doing and to draw a much better picture of it than is portrayed by the media. I should be happy to have an opportunity to explain the operation of the code, but that does not rest with me.

The hon. Gentleman asked about the level at which decisions are taken to prosecute when offences have resulted in death. It is taken at a high level. One of the advantages of the Crown Prosecution Service is that decisions have been decentralised. Decisions that were taken in almost every case by the Director of Public Prosecutions in London are now taken at chief Crown prosecutor level in the regions. It affords a better opportunity to take into account local considerations, and that change is therefore to be welcomed. It would always be at chief Crown prosecutor level that a decision of that kind would be taken, and in a particularly difficult or sensitive case it would properly be taken by the director, sometimes in consultation with one or other of the Law Officers.

I was asked about the ability to ask for a review of a specific decision if a coroner or the police asked for such a review. That can best be done without referring to me or to the Director of Public Prosecutions. There is no inclination to hold to a decision simply because it has been reached at a certain level and in certain circumstances. In all reasonable circumstances, there is complete readiness to review a decision, not least because everyone concerned recognises the importance of retaining public confidence in the Crown Prosecution Service.

Lastly, I was asked about the tests applied in relation to the rule about sufficiency of evidence and the rule in relation to the public interest. The hon. Gentleman suggested that where death has resulted there ought to be a review always to ensure that the public interest has been served. I think that I dealt with that at the beginning of my reply when I said that it is universally recognised within the Crown Prosecution Service that a case where death has taken place in potentially criminal circumstances needs to be treated with special care and particular sensitivity. Not every case that results in death, however, can properly be prosecuted if the rules are to be adhered to. It is important that we exercise the power of prosecution with care because, as I have already said, it is a highly invasive power with marked effects upon the liberties of the citizen.

I hope that I have replied satisfactorily to the points raised by the hon. Gentleman about this extremely important subject.