Written evidence submitted by the Crown Prosecution Service (MAC0010)
INTRODUCTION
The Crown Prosecution Service (CPS) is at the heart of the criminal justice system in England and Wales, working with our partners to protect the public and create a safe society and 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 for court;
presenting cases at court.
In more serious cases, the CPS makes the decision about whether or not to charge a suspect – reviewing every case referred to us by the police. We may also provide early advice to the police about their investigation. For less serious offences, the police can make a charging decision without our input.
Our work is demand led. We do not select which cases to consider, but review every case referred to us by the police or other investigators. We cannot direct investigations, but we do work with investigators from an early stage of complex cases, to ensure the right evidence is collected to build a strong case.
The CPS welcomes the additional opportunity to contribute to the Committee’s important inquiry to mark the 20th anniversary of the Macpherson Report, in the context of a renewed focus on the impact of the Covid-19 pandemic on ethnic minority communities.
The CPS is committed to ensuring fairness and independence in our prosecution decisions: the delivery of impartial justice, without fear or favour. As we work to deliver our new strategy CPS 2025, independence and fairness continue to be enshrined in our values.
The CPS is working with the police to improve the collection of equality data of victims and defendants. This will further enable us to identify and address disproportionality across a wider spectrum of protected characteristics. We also engage stakeholders, communities and academics to discuss their concerns around disproportionality issues, such as Stop and Search, collaborating with partners to understand its root causes.
The Covid-19 pandemic has presented a number of significant challenges for the criminal justice system. The disproportionate impact of Covid-19 on ethnic minority communities, the death of George Floyd and the #BLM movement have also shone the spotlight onto the issue of disproportionality, both within the CJS and wider society.
The CPS is committed to supporting people who may feel unheard and left behind by the CJS, in particular black and minority ethnic communities; by ensuring that we identify activities and tailor narratives to re-engage these communities, utilising local insights to inform our recovery plans.
BACKGROUND
1) Fairness and justice are at the heart of CPS decision making. We are committed to promoting equality of opportunity, tackling unlawful discrimination and promoting good community relations.
2) Our work is demand-led, as we can only make charging decisions on cases referred by the police. We make all legal decisions independently based on the Code for Crown Prosecutors.
3) Our approach to the #BLM movement is consistent with the CPS’s legal guidance on public protests, which is designed to balance the right to free speech and assembly with the requirement to prosecute violations of the law in the public interest, where the Code Test is met.
4) The CPS has implemented two of the three Lammy review recommendations in full. The CPS is not able to take forward recommendation eight on race-blind prosecutions. This was carefully considered and explored, but there are significant practical barriers to removing all race/ethnicity identifying information from material passed to the CPS by the police. Our quarterly review of defendant characteristics by ethnicity, gender and age helps us to ensure our decisions are fair and we would not want to compromise this.
5) There is no room for complacency and, in the interest of monitoring and understanding disproportionality; the CPS is commissioning a substantial independent academic review of disproportionality in CPS decision-making to look at both national and local trends.
6) The CPS has gone beyond the Lammy recommendations and, in May 2018, published an innovative and ambitious Inclusion and Community Engagement Strategy, which for example includes the concept of ‘Community Conversations’. This is a model where local senior leaders meet with community leaders in a community setting, where community members set the agenda and the CPS representatives are in ‘listening mode’ to hear concerns and answer questions. In the Government Internal Audit Agency (GIAA) review into CPS community engagement, the Community Conversations model was highlighted as a good management tool for directly engaging with members of local community groups; both new and emerging and those that are likely to be impacted by CPS work.
7) The CPS engages openly with a wide range of stakeholders, including academics, the voluntary sector and community representatives, to ensure that our policy and legal guidance reflects best practice and is responsive to communities’ needs. Our commitment to inclusion and equality is at the heart of how we work. We are accountable for the decisions we take that affect the communities we serve, for example through casework scrutiny, which allows us to demonstrate fairness in the prosecution process. The 2018 Lammy review recommended that “other CJS institutions should learn lessons from the CPS, including openness to external scrutiny, systems of internal oversight, and an unusually diverse workforce within the wider CJS”.
Tackling disproportionality in relation to casework
8) The CPS has launched flagship policy programmes that focus on strengthening public confidence among our diverse communities. Our work on victims, witnesses, and defendants takes a person-centred approach, focusing on understanding and addressing the needs of members of society who live in the most vulnerable situations and come into contact with the criminal justice system for a variety of reasons. These programmes include a focus on mental health and young people, including black and other ethnic minorities, as victims or as defendants. Our ambition is to interact with members of the public with empathy, understand particular sensitivities, and work with partners to ensure access to support services where needed.
9) The CPS is working with the police to improve the collection of equality data of defendants and victims via the Digital Case File, a police-led initiative designed to agree national information requirements, supported by new technology.
10) Our quarterly published data shows there is no significant disproportionality in our decision making. We nevertheless recognise that there is no room for complacency and, in the interests of monitoring disproportionality; the CPS is commissioning a substantial independent academic review of disproportionality in CPS decision-making, to look at both national and local trends.
Community Engagement
11) Each of the 14 CPS Areas has an Inclusion and Community Engagement Manager (ICEM). The role of the ICEM is pivotal to the delivery of our Inclusion and Community Engagement Strategy. The main aims of the strategy are: to build trust with all communities; to make inclusion everyone’s business; and to work with communities and partners to deliver high quality casework. The strategy has a particular focus on ethnic minorities and disabled people, whom the Crime Survey of England and Wales identifies as having less confidence in the Criminal Justice System than the general population.
12) The CPS has well-established national and local mechanisms in place to listen to communities, to inform CPS decision-making and policy development. This was recognised by the Lammy Review as a best practice example.
13) Each CPS Area has a Local Scrutiny Involvement Panel, which consists of representatives from community groups, relevant voluntary community sector organisations and a number of CJS partners. The remit of the panel, chaired by the Chief Crown Prosecutor or the Deputy Chief Crown Prosecutor, is to review finalised hate crime cases, including racist and religious hate crime. This enables communities to have a better understanding of how the CPS reaches its charging decisions and provides the CPS with opportunities to identify areas for improvement. A number of these panels continue to be delivered virtually during the lockdown period due to Covid-19.
14) The CPS is aware that some ethnic minority communities have been targeted for racist hate crime, including South East Asian Communities.
15) As part of our community engagement activity to better understand and respond to community concerns, CPS Areas have been engaging with communities that have been disproportionately impacted by Covid-19 related hate crime and the Black Lives Matter (BLM) Movement.
16) Chief Crown Prosecutors in all CPS Areas have written to community panel members and stakeholders, to provide updates on how the criminal justice system is meeting the demands of prosecuting during this unprecedented period, and to provide reassurance.
17) Over the coming months, the CPS will be engaging with a diverse range of stakeholders by hosting Community Accountability Forums (CAF), examining the criminal justice impacts of Covid-19 on our communities, such as disproportionality and hidden harms. This will give us a valuable opportunity to hear the concerns of communities and use these insights to feed into the CPS and broader CJS Covid-19 recovery and action plans. The CAFs will be informed by a series of targeted listening exercises with communities at an Area level, and will be co-chaired by the CPS’s Chief Executive and Independent Chair, Fiyaz Mughal OBE.
CPS response to Lammy Review recommendations
18) Recommendation 6: The CPS should take the opportunity, while it reworks its guidance on Joint Enterprise, to consider its approach to gang prosecutions in general.
The CPS has published new guidance on joint enterprise. The guidance clarifies the evidence required to prove an associate participated in an offence. Evidence of association with or membership of a group or gang, without any other evidence, will not be sufficient to charge an accomplice with an offence.
19) Recommendation 7: The CPS should examine how Modern Slavery legislation can be used to its fullest to protect the public and prevent the exploitation of vulnerable young men and women.
The CPS has published guidance on ‘county lines’ offending, which sets out the approach of the police and the CPS to the safeguarding of vulnerable persons involved in this type of crime, and the prosecution of criminal offences of this type. The guidance has a particular focus on the relevance of the Modern Slavery Act 2015 and matters to be addressed by investigators and prosecutors in using that legislation. The first successful prosecution of this type of offending using the Modern Slavery Act was resulted in sentences handed down for a total of 19 years imprisonment, in April 2018.
20) Recommendation 8: Where practical all identifying information should be redacted from case information passed to them by the police, allowing the CPS to make race-blind decisions.
The recommendation was carefully considered, but there are significant practical barriers to removing all race identifying information from material passed to the CPS by the police. The data on race and gender helps us to ensure that our decisions are fair, and we would not want to compromise this.
Deaths in custody of the last five years
21) The Independent Office for Police Conduct (IOPC) publishes figures for deaths in or following police custody each year, including by ethnicity.
22) These figures cover deaths that happen while a person is being arrested or taken into detention, including deaths that occur in or on the way to hospital following transfer from the scene of arrest or police custody. They do not include suicides that occur after a person has been released from police custody. In 2018/19 there were 16 deaths in custody, of which 15 individuals were white and one was black.
CPS role in holding those responsible to account in death in custody cases
23) When deciding which cases should be prosecuted, CPS prosecutors must comply with the Code for Crown Prosecutors. The Code contains a two-stage test for prosecutors, which requires them to ensure there is enough evidence for a realistic prospect of conviction, and that prosecution would be in the public interest. This includes ensuring that the charges reflect the seriousness and extent of the offending, and are supported by the evidence gathered in the investigation. Each case involving a death in custody is unique, and the charges will depend on the evidence gathered during the investigation. For that reason, it is not possible to predict which specific charges will be considered, however, some of the offences we may consider are gross negligence manslaughter, corporate manslaughter or misconduct in public office.
24) The CPS has prosecuted a number of deaths in custody cases. In 2017, the CPS charged and prosecuted three police staff for manslaughter in the case of Thomas Orchard. The case went to trial and the defendants were found not guilty.
CPS decision-making and public protests
25) Prosecutors recognise that freedoms of speech and assembly are protected, but are not absolute rights. The CPS will prosecute, and thereby lawfully interfere with a freedom, where it is in accordance with the law, necessary and proportionate. Free speech and peaceful assemblies are protected by Articles 10 and 11 of the European Convention on Human Rights and the Human Rights Act 1998. Sections 12, 13 and 14 Public Order Act 1986 set out circumstances in which assembly and procession can be interfered with, to the extent that it is necessary and proportionate. The decision to prosecute will also be made in accordance with the requirement for sufficient evidence for a realistic prospect of conviction, and that the prosecution is in the public interest.
The CPS role in supporting families of death in custody cases
26) The CPS has produced an information booklet for bereaved families in death in custody cases, which provides an overview of the processes followed by the CPS after the death of a person in state custody. It explains the role of the CPS in determining whether or not to prosecute, how that decision is reached, and how and when we will engage with families to make sure they remain fully informed throughout a prosecution.
27) As part of our work on improving public confidence and the service we provide to bereaved families in death in custody cases, we are keen to learn from other organisations focused on addressing inequality in the justice system (particularly ethnic minority led organisations), to be proactive in ensuring that we incorporate a range of perspectives into the development of this work.
CONCLUSION
28) During this unprecedented period, the CPS has continued to engage with communities most adversely impacted by Covid-19 and the important issues raised in the BLM protests, to update them on how the CJS is operating and provide reassurance. We will continue to work with the National Community Tension Team and gather insights from communities, voluntary and statutory stakeholders to inform our approach to community engagement and address any concerns raised. We will also continue to engage with communities most impacted by Covid-19 and the BLM issues, to inform our work on tackling disproportionality, both with the CPS and the criminal justice system more broadly, working with partners to rebuild trust and confidence.
June 2020