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Written evidence submitted by CPS & SPA to the Select Committee on the Armed Forces Bill
Introduction
This submission is made to the Armed Forces Bill Select Committee inquiry into the Armed Forces Bill (the Bill). The submission focusses on clause 7 of the Bill, which puts on a statutory footing the Protocol between the Director of Public Prosecutions (DPP) and the Director of Service Prosecutions (DSP), on the exercise of criminal jurisdiction in England and Wales (the Protocol).
The Crown Prosecution Service
In the Criminal Justice System in England and Wales (CJS), the Crown Prosecution Service (CPS) is responsible for:
Advising the police on cases for possible prosecution;
Reviewing cases submitted by the police;
Determining any charges in more serious or complex cases;
Preparing cases and presenting cases in the civilian criminal Courts (magistrates’ Courts, Crown Court and the Court of Appeal).
In more serious cases, the CPS makes the decision about whether to charge a suspect – reviewing every case referred by the Home Office Police Forces and other civilian constabularies (collectively “CIVPOL”). The CPS also provide early advice to the police about their investigation. For less serious offences, CIVPOL can make a charging decision without CPS input.
The Service Prosecuting Authority
In the Service Justice System (SJS) the Service Prosecuting Authority (SPA) is responsible for the prosecution of service offences before the Service Courts, which include the Court Martial, the Court Martial Appeal Court, the Service Civilian Court and the Summary Appeal Court.
In respect of cases referred to it by either a Service Police Force or a Commanding Officer, the SPA:
Decides whether the case should be prosecuted;
Determines the appropriate charges to bring;
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Prepares cases and presents them in the Service courts.
In addition, the SPA works closely with and provides advice to the Service Police Forces (“SPF”) consisting of the Royal Military Police, the Royal Navy Police and the Royal Air Force Police, in respect of the investigation of offences.
Commonalities
The work of both the CPS and the SPA is demand led. Neither organisation selects the cases to consider nor can they direct investigations, but each works with investigators from an early stage of complex cases, to ensure the right evidence is collected to build a strong case.
CPS prosecutors are independent from persons or agencies that are not part of the prosecution decision- making process. Likewise, the SPA is independent of the Ministry of Defence and the military chain of command in respect of its prosecutorial functions. Both organisations are independent from the police and other investigators.
Concurrent jurisdiction
Under section 42 of the Armed Forces Act 2006 (AFA), the Court Martial has jurisdiction over any criminal offences, contrary to the law of England and Wales, committed anywhere in the world by a person subject to service law, and, in more limited circumstances, by a civilian subject to service discipline.
The CPS and SPA therefore have concurrent jurisdiction with regard to any criminal offences committed in England and Wales by a person subject to service law, or a civilian subject to service discipline. This includes serious offences, such as murder, manslaughter and rape.
The approach to charging decisions – The Code for Crown Prosecutors
Both the CPS and the SPA abide by the The Code for Crown Prosecutors (“The Code”), which sets out the general principles to be applied when making decisions about prosecutions. Under The Code, a prosecution must only be started or continued if it passes both stages of the Full Code Test. At the first stage, the prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. If this is met, prosecutors must go on to consider the second stage, namely whether a prosecution is required in the public interest, as it has never been the rule that a prosecution will automatically take place when there is sufficient evidence to prosecute a case.
The Code provides a number of questions that prosecutors should consider when deciding the public interest. These questions address: the seriousness of the offence; the suspect’s level of culpability; the harm to the victim; the suspect’s age and maturity; the impact on the community; whether prosecution is a proportionate response; and whether sources of information require protecting.
Prosecutors determine the relevant public interest factors for and against prosecution by considering these questions. These factors, together with any public interest factors set out in relevant guidance or policy issued by the DPP or DSP, enable prosecutors to form an overall assessment of the public interest.
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In addition, when applying The Code the SPA at the second stage consider whether a prosecution is required in the Public (including Service) Interest, which recognises that there will be additional factors to take into account, given (a) the additional Service disciplinary offences (e.g. disobedience) not available in the CJS, and
(b) the need for the SJS to maintain discipline.
The current Protocol
The current Protocol between the CPS and the SPA, which sets out the principles to be applied when there is concurrent jurisdiction between the CJS and the SJS, was agreed in November 2016. The signatories were the Ministry of Defence (MOD), as well as the DPP and the DSP. The Protocol updated and replaced the previous Protocol, which was agreed in 2011, and which itself had replaced the guiding principles set out in the Home Office Circular 35/1986.
The Protocol assists prosecutors in determining the most appropriate jurisdiction in which to charge and subsequently try a case. It provides a list of factors that may be taken into account when considering the appropriate jurisdiction.
The Protocol indicates that where there is an issue as to the appropriate jurisdiction in which to deal with a suspect who is subject to Service law, the DPP and the DSP should consult in relation to the appropriate jurisdiction to deal with the case, acknowledging that the final decision rests with the DPP.
Police Memorandum of Understanding (MOU)
The Prosecutors’ Protocol is supported by a police MOU between HOPF, the Ministry of Defence and the SPF (Home Office Circular 028/2008). This provides guidance on how to deal with cases where there is concurrent jurisdiction, to ensure that any subsequent prosecution takes place in the appropriate courts.
A decision as to jurisdiction should be made at the earliest reasonable opportunity and, in any event, before charge where possible. An important part of the decision-making process is any decision by the police force(s) investigating the alleged conduct.
Accordingly, the CPS and SPA view the operational arrangements between CIVPOL and SPF as a key factor in ensuring that cases are investigated and prosecuted in the appropriate jurisdiction.
We anticipate that the proposed revisions to the police MOU will mirror the changes that are being proposed to the Prosecutors’ Protocol, and the CPS and the SPA will be consulted before the revisions are finalised.
CPS-SPA engagement
Co-operation between the CPS and the SPA enables fair and efficient justice for victims, witnesses, and defendants.
The DPP and DSP had an introductory meeting in November 2020, shortly after the DSP took up his post; and they met again, with the Attorney General, in December 2020.
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CPS and SPA officials maintain a good working relationship and regularly liaise on policy issues that may impact both organisations as well as in individual cases.
The Lyons Review of the Service Justice System
The SJS Review (Part 1) by HH Shaun Lyons recommended that Court Martial jurisdiction should only include murder, manslaughter and rape offences committed in the UK when the consent of the Attorney General is given.
The SJS Review also recommended that consideration be given to including offences of assault by penetration (contrary to s2 Sexual Offences Act 2006) or both s2 and sexual assault (contrary to s3 Sexual Offences Act 2003) in the category of cases that should be proceeded with under in the CJS when the offences are committed in England and Wales and placing guidance in the Prosecutors Protocol and other relevant protocols as to allocation of these cases.
The CPS and SPA, as independent prosecution authorities, are not involved in decisions as to whether to accept any recommendations regarding jurisdiction made by the review, which are a matter for Government.
Draft revisions to the Protocol
Following the decision of the Secretary of State to place the Protocol on a statutory footing, CPS and SPA officials have been reviewing and revising the Protocol.
In making these revisions we intend to:
Give effect to clause 7 of the Bill and the new section 320A to be inserted into the AFA.
Give guidance as to general principles which are to be taken into account by a CPS or SPA prosecutor when considering in which jurisdiction (Service or civilian) proceedings should be brought. The current Protocol contains a number of principles and factors to be taken into account, which will be updated and will include as a factor any views expressed by the complainant.
Give guidance as to the procedure and decision-making process that should apply where a CPS or SPA prosecutor considers there may be an issue as to the appropriate jurisdiction. This will include the requirement for discussions between the CPS and SPA and the level of seniority at which decisions as to jurisdiction should be made.
Give guidance as to the types of cases in which consultation between CPS and SPA prosecutors will be required, and the level of approval for decisions on the appropriate jurisdiction for these proceedings. Our current thinking is that these cases should cover the offences of murder, manslaughter, rape, sexual assault with penetration and sexual assault without penetration.
Retain the principle that where there is disagreement on the appropriate jurisdiction, the DPP and DSP should consider the matter and come to agreement and, if they cannot reach an agreement, the final
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decision will be made by the DPP. We shall also retain the principle that either Director may consult the Attorney General to seek their view on the appropriate jurisdiction.
Consultation on the revisions to the Protocol
As stipulated by clause 7 of the Bill, we shall consult on the proposed revisions to the Protocol, and this will include consultation with the Secretary of State, the Attorney General and the National Police Chiefs’ Council.
In accordance with the written ministerial statement of the Defence Secretary, dated 12 November 2020, the consultation will be focussed on the principles and factors to be considered relevant in guiding allocation decisions as to the appropriate jurisdiction for proceedings.
The consultation documents will be accessible on the CPS and SPA websites, so that any member of the public may provide their views. We shall also target stakeholders with an interest in the Protocol and we are currently liaising with officials at MOD and the Attorney General’s Office to prepare a stakeholder list of consultees.
We anticipate that we shall launch the 12-week consultation in the spring and finalise the revisions to the protocol, after consideration of all consultation responses, in the summer.
We shall write to the Chair of the Armed Forces Select Committee with a copy of the consultation documents on launch, and we would be grateful for the Committee’s feedback on the proposed revisions.
10th March 2021
Written evidence submitted to the Select Committee on the Armed Forces Bill