Abstract
Prosecutors are critical players in the criminal justice process. The decisions they make have huge implications for defendants, victims and the wider public. Yet, the factors that influence their decisions are little understood. This article presents new empirical findings drawn from interviews with Crown Prosecutors. It reveals nine important factors that influence Crown Prosecutor decision-making. Together, these nine factors paint a much wider and richer picture of how and why Crown Prosecutors make decisions than has hitherto been presented in research or that is described in the Code for Crown Prosecutors. The article concludes by considering the implications for prosecution policy and practice from this new, richer and wider perspective.
Introduction
Crown Prosecutors play a critical role in the criminal justice system. In 2022–2023, the Crown Prosecution Service (CPS) considered over 430,000 1 criminal cases, ranging from the most serious and life-changing offences, such as homicide, child abuse and terrorism, through to those cases that are more common, such as shoplifting, low-level disorder or minor criminal damage. In each case, CPS prosecutors considered the sufficiency of the available evidence and whether a prosecution would be in the public interest. Out of the 430,000 2 or so cases put forward to the CPS by the police for charging in 2023, just over 330,000 3 resulted in prosecution and conviction.
Prosecutors have lots of power to determine criminal justice outcomes. In over 79,000 4 cases – around a fifth of the total cases in 2022/3 – CPS prosecutors decided to stop a prosecution either before a suspect was charged or before the case got to trial. The decision taken by a CPS prosecutor in these cases effectively ended the criminal proceedings once and for all. 5 In criminal matters, whether small or large, CPS decisions affect the lives, livelihoods and liberty of many.
So, it is surprising just how under-researched and little understood is Crown Prosecutor decision-making. A burst of research interest, lasting a decade or so, followed the creation of the CPS in 1986 (for instance, see Sanders,6,7 Ashworth, 8 Gelsthorpe & Giller, 9 Baldwin 10 and Hoyano et al.). 11 This has been supplemented by more recent work (such as Fairclough, 12 Porter 13 and Soubise14,15). But, together, these pieces of research do not alter the overall picture of a paucity of research. For instance, a search on the Cambridge University Library catalogue returns 21,993 entries for research for ‘police’, 2,928 for ‘judiciary’ and 876 for ‘Crown Court’, but only 462 items for ‘Crown Prosecution Service’ (2% of the number for the police).
This relative lack of research interest is even more surprising when one considers just how much prosecutor decision-making is currently under intense scrutiny. The decisions made by CPS Prosecutors have been making news headlines for years – and very often for the wrong reasons. Whether it was the acquittal after trial of a prominent Member of Parliament, 16 a series of rape cases discontinued before trial due to new evidence emerging at the last minute, 17 questions about whether to prosecute cases of assisted suicide 18 or prosecution for immigration offences, 19 confidence and trust in CPS prosecutor decision-making has repeatedly been called into question. 20
The research presented below is a step toward filling out the hitherto sketchy academic landscape of prosecutor decision-making. It aims to enhance, refresh and further our knowledge of this most critical of criminal justice players – the Crown Prosecutor.
The Context of Crown Prosecutor Decision-Making
Before I begin exploring how the Crown Prosecutors described their decision-making it is worth spending a little time setting out the wider context of prosecutor decision-making within the CPS.
There are 3000 21 Crown Prosecutors, split into 14 (geographical) CPS areas, 22 with some specialist casework units residing within the Headquarters structure (for issues, such as proceeds of crime prosecutions, international matters and terrorism). Within each area, the Crown Prosecutors are typically split into a number of teams focussed on dealing with cases of a particular type; usually a CPS Area has a charging team (responsible for providing the police with initial advice on a case and a decision, where necessary on what charges to apply), a magistrates’ courts team, a Crown Court Team and a Rape and Serious Sexual Offences (RASSO) team.
The central document, and the starting point for all considerations of Crown Prosecutor decision-making, is the Code for Crown Prosecutors. 23 The Code was first published in 1986 upon the creation of the CPS and has been updated every few years, with the 2018 edition being the eighth. The Code sets out the basis upon which Crown Prosecutors should make their decisions. At the heart of the Code is the ‘Code Test’, which needs to be considered for each case and ‘passed’ if a prosecution is to continue. The Code Test has two stages: the first in which Crown Prosecutors must consider the evidence and decide whether there is a ‘reasonable prospect of conviction’ and a second stage (only considered if the first stage is passed) in which Crown Prosecutors consider whether a prosecution would be in the public interest. In addition to the Code, there is a series of offence or offender specific guidance documents 24 that set out more detailed considerations (e.g. on biotech offences, LBGT issues, disability crime and so forth).
The initial charging decision rests with the police for minor offences (although they must apply the principles and standards set out in the Code for Crown Prosecutors). For more serious offences, it is the CPS that decides upon the correct charge to place and must authorise such charges before the police charge a suspect.
The Research Data
The empirical data presented in this article were gathered from interviews conducted with Crown Prosecutors from 2016 to 2017. 25 The later discussion section will set out in more detail that whilst the data used in this article are some years old, they still represent an important and fresh new perspective on prosecutor decision-making, in particular when considered against the general paucity of research into the CPS.
CPS Headquarters provided permission to approach Chief Crown Prosecutors to ask for research participants. Of the 14 Chief Crown Prosecutors approached, seven replied. Interviews took place in the offices of the Crown Prosecutors in all seven CPS Areas. I completed 34 interviews. The prosecutors interviewed comprised four different types of prosecutors: magistrates’ courts prosecutors, Crown Court prosecutors, an in-house CPS barrister and prosecutors from Rape and Serious Sexual Offences (RASSO) units.
Research Methods
Prosecutors volunteered to be interviewed, and as such, I used the non-probability sampling method (Bachman and Schutt). 26 Nonetheless, my sample represented a reasonable cross-section of prosecutors.
The interviews were semi-structured interviews (Noaks and Wincup) 27 and lasted around an hour each. With permission of the Crown Prosecutor, I made an audio recording of the interview, and the interview later transcribed. I used NViVo software to record the coding of my data.
I adopted a mixed approach to identifying and developing the themes that emerged from the interviews. I entered into the data analysis phase already holding some broad initial ‘categories of interest’ drawn from prior work (such as ‘notions of public interest’, ‘evidential sufficiency’, ‘management oversight’) and my coding structure was accordingly themed by this set of broad topics. Within these broad topics, I attempted as far as possible to adopt a grounded theory approach (Glaser and Strauss), 28 in which I did ‘not begin with a prior hypothesis to be tested [at least, within the broad topic area] but induced [my] hypothesis from close data analysis’ (Silverman). 29 So, whilst the broad themes of the data analysis did not simply emerge from the data, and I do not claim that my analytical topics are therefore ‘hypothesis free’, the more detailed analytical content and coding structures within the broad set of topics did emerge from the data as per grounded theory would suggest.
After about interview 28 onwards, the degree of new data and perspectives that had not previously arisen was significantly reduced, suggesting I had reached saturation point (MacLean et al.). 30 I continued until interview 34 to be sure, and then decided to conclude the data gathering phase.
Nine Things That Really Matter to Prosecutor Decision-Making
During the interviews, Crown Prosecutors described their thoughts when making a case decision. They were asked to reflect upon how, why and when they use they Code, what was important to them when making a case decision, and what they ‘looked out for’ when reading a case file for the first time.
Across the 34 interviews, a pattern emerged of nine core factors that prosecutors kept coming back to when describing their case decision-making. In different ways, and in response to different questions, these same nine factors were returned to. This is not to say, by any means, that views on these nine factors were uniform amongst Crown Prosecutors – far from it. Views on these critical nine factors differed markedly between Crown Prosecutors, as the following analysis will show. But, the nine core factors acted as the critical perspectives, or key questions, that almost all Crown Prosecutors recognised as being important to their decision-making and so having some influence in their decision on a case.
The nine important factors, which will be described in more detailed below, can usefully be set out in summary form:
Some Crown Prosecutors use the Code, and some do not. The majority of Crown Prosecutors use the Code in some way, but often quite superficially. A large minority of Crown Prosecutors report not using it at all. A few prosecutors mentioned the supporting guidance documents and supporting policies, but their use appeared limited. The Code Test is a moveable feast. Both the Evidential and Public Interest Stages are interpreted in a variety of ways. The Evidential Stage interpretations range from focussing on the likely jury decision through to focussing on a 51% chance of successful prosecution. The Public Interest Stage interpretation incorporates notions of ‘the man on the street’, the ‘Daily Mail Test’ or a sense of following one's own ethical framework. There are some important core principles. Most Crown Prosecutors felt notions of justice and fairness were uppermost in their mind when considering a case. Notions concerning the victim, the symbolism of a public prosecution and the regulation of society were secondary considerations. (Ir)rationality. Most prosecutors reported using their gut feel and intuition when making decisions. ‘Life experience’ was said to matter. Less than half claimed to act wholly rationally or objectively when making case decisions. Others’ opinions matter (sometimes). Opinion was split on how constrained prosecutors felt by prior decisions by other Crown Prosecutors. Around half spoke of diverging from prior decisions, half stressed consistency. Can the police be trusted? Opinion was split on whether CPS prosecutors trust police accounts of events, with roughly half prosecutors saying they rely upon policy summaries and half expressing concerns in uncritically accepting the police summaries. The issues of the day. Considerations of local issues predominated over national issues when considering cases, and most prosecutors reported taking local issues into account in some way during their decision-making. Sometimes it just isn’t worth the candle. Cost matters to most prosecutors and is a factor in decision-making for many. A small, but stringent minority felt that cost should play no part in prosecution decision-making. Who is my real boss? Victim and line manager scrutiny were the two main factors playing on prosecutors’ minds when thinking about the risks of making a poor decision. Scrutiny by the press and judges were mentioned by only a few.
I shall now look at each of the nine factors in more detail.
Some Prosecutors Use the Code, Some Don’t
The Code stands as the cornerstone of Prosecutor decision-making. The CPS holds it to be the statement of how and why Crown Prosecutors go about making their decisions and, on the face of it, expect that each Crown Prosecutor will hold the text of the Code – and in particular, the text of the Evidential and Public Interest stages of the Code test – clearly at the forefront of their mind when doing their work.
But do they? Is the Code so central to Crown Prosecutors as the CPS would like to think? In interview, around two-thirds of Crown Prosecutors said they make use of the Code in their day-to-day decision-making. One reported using it in every decision they made: I will literally refer to it in the charging advice and look it up…I don’t just do it off the top of my head. I just constantly refer back to it if I’m doing charging advice. I suppose I’ve always got it, sort of, there. I have it physically on my desk and also in the back of my mind guiding me through the way I look at the file. It's very important to be making the right decisions, and so you just keep double-checking. It's almost like a little safety net, if that's the right term, but it's sort of a safety net. It's something to hide behind I suppose, isn’t it? I think you’ll actually find quite a few of our prosecutors don’t necessarily understand the Code in full. So, if they consider that the evidential part of the Test is not met, they’ll still consider the public interest, whereas actually they should be stopping. Younger people might say, ‘Well, look, yeah, we are very aware of this. We check everything off in the Code against what we do’. But I think, to be honest, when you’ve been doing it for a while you know whether something's going to float or sink. And you make the assessment on the evidence on your experience and everything else. I don't use it as a written document as it currently is. I wouldn't use it. I wouldn't ever go to the Code in order to write an advice. I go with my knowledge of evidence and I go with my knowledge of what's in the public interest and what's not.
The Code Test is a Movable Feast
The prior section showed that many (but not all) Crown Prosecutors do report using the Code in some way in their day-to-day work. It would seem to be a document that has use for many Crown Prosecutors, then. But that is not the whole story. Even if two Crown Prosecutors both use the Code in their daily work, how do we know they are using it consistently? Would Crown Prosecutors interpret and apply the Code consistently or very differently?
A range of contrasting views were expressed about how the Evidential Stage of the Code Test should be interpreted. The first such view was that the decision to prosecute was determined not by an objective assessment of the evidence in the case, but instead by what the jury in the case would likely decide. An experienced prosecutor working in a Complex Casework Unit explained: So, basically, it means that I look at the evidence, and I’d think, ‘Could a jury convict?’ A jury in possession of what I know, could they convict, which is a tricky one really because it means you’ve got to get inside the mind of a jury, and of course, every jury is different. But you get a feel for what juries will do. You can present a clear case to the magistrate that they will want to hear from the defendant, they’ll take it beyond half time, you’re not going to have the defence putting a submission in that there's holes in your case. Well, I suppose the Code's right when it says you need to have a 51 per cent chance of getting a conviction or not. It's clearly not up to the 90 per cent plus that we have to secure a conviction upon, that's a much higher test. It's clearly more than ‘I’m getting past half-time’, which the test for that is might a jury, properly advised, convict? So, it's somewhere between the two. I don’t think that [the Code test] allows the realistic prospect of conviction to be properly assessed. It's not a line in the sand, it's a moveable feast, and understanding where it moves and settles in any particular case does depend on how is that going to pan out at trial. Is it in the public interest? Is it in the interest of citizens around us to prosecute this person for this offence? Might an ordinary person in the street think it needed to be prosecuted? I do try to think in those terms. I would say the public interest begins with the individual victim, if there is a victim in the case, which pretty much puts public interest there satisfied, unless then something happens and the victim…not necessarily retracts, but doesn’t want it to be prosecuted. There's the Code. Take it on board. Think of examples and apply it in the first instance. What's their automatic reaction? Does that fit in with what the Code says? I suppose you could say…what would the Daily Mail reader, if I didn’t prosecute this case what would the Daily Mail readers say. That's quite a good test. They’d be up in arms wouldn’t they, and you could, that's a way of looking at it. What would the Daily Mail readers say? I think the true answer is probably my own ethics, actually. My own morality and what I think is right and wrong.
There are Some Important Core Principles
So if the Code text is so open to interpretation, and Crown Prosecutors take such varying views of it, how do we explain what sits behind the varying interpretations? Is there, perhaps, a more fundamental set of principles or core values that drive Crown Prosecutors to make the decisions that they do?
Prosecutors were asked a seemingly very basic set of questions: What is the point of a prosecution? What is it trying to achieve? The responses from Crown Prosecutors showed that there was no single consensus view on the answer. Over a third of interviewees questioned on this point said that they thought foremost about achieving a just and fair decision when deciding to prosecute or discontinue. This was most commonly explained as a sense of prosecuting only those who ought to be prosecuted, and often was linked to a notion that the prosecutor represents not just one side in an adversarial system but that prosecutors in fact had a wider commitment to justice as a whole. The following quote is fairly typical: Justice…I’ve always treated being a prosecutor as being someone in court who is fair and independent, and … it sounds corny, but to ensure that justice is working smoothly and fairly. I observe prosecutors who I think are more of a persecutor perhaps. I think that's the wrong approach. [T]he right result for the victim…Ensuring some justice is done for the victim…If you’ve got a victim in a case, what you want to do and hope to be able to do is, you want to put through the best case for them, and ensure you get a conviction on their behalf. That's the nub of the job if you like. I think it's about regulating society basically, that's what I think it is. I think it's … my job is to put the people in court where they should be answerable for what they do.
(Ir)rationality
Perhaps, there is another explanation as to why interpretations of the Code vary so much from one Prosecutor to another: maybe Prosecutors are not wholly rational in their decision-making. The Code for Crown Prosecutors assumes that Crown Prosecutors are rational decision-makers. It assumes they come to their decisions following objective and dispassionate consideration of the facts of the case combined with the general principles set out in the Code and associated guidance. But do they?
This unerring rationality demanded of Crown Prosecutors does not, in fact, occur. Conversations with Crown Prosecutors about how they go about making case decisions reveals a far more complex picture, which blends both rational and irrational decision-making. This should not be a surprise, as the work of Kahnmann 31 and Dhami32,33 show.
For instance, only around a third of Crown Prosecutors described taking a wholly rational and objective approach to their work, as this Crown Prosecutor did when asked what behaviours and characteristics make a good Crown Prosecutor: Analytical, impartial, objective, humane, unbiased…You’ve got to look at a case and you’ve got to be incredibly objective, and incredibly open minded and just apply the Code, and if the evidence is there, you prosecute. You don’t let any personal factors influence your decision-making. I can’t think of anything else really. Well, you can see both sides. You can say a young person who is drunk and disorderly and they have no previous convictions or have not offended before. I'd probably look more sympathetic and think that could be my son. On the other hand, I would also think, well I have got a son and he does go out drinking, but he doesn’t get arrested by the police for being drunk and disorderly. And also, you know, things where instances happen in a city centre and you think, that if you've got children that could be my child, so you have a different view upon that. I’ve got two relatively young kids now and the stuff that involves children you do treat differently, and I realised I was doing that a lot more strongly when the nippers popped up. I think experience, and I’ve had a wide range of experience. I grew up abroad, I’ve had kids, dogs, animals, friends…When you get to my age, you’ve been there, done that and gone round in a circle. So, that obviously plays in any decision-making, because you’re also the person that could be on the jury. I think that the individual is always going to be important. I'm a father of four kids. That's going to impact, I suspect, on some of the decision-making that I do. I'm married. Where I live, where I work. All of these things, I think, potentially impact. Even if not consciously. Sub-consciously, they simply must. My political views are likely to impact on what I think's acceptable and what I don't thinks acceptable. The fact that I'm left-wing means that I might make certain decisions that other people might not agree with. I always call it my wrinkly nose feeling…. So, if I read a case and then I go, hmm, that's my wrinkly nose feeling. Then, I don’t like it. There's something about it which means I don’t think we’re going to be successful and that's the gut feeling, hunch is my wrinkly nose feeling. That's experience, I think. Seeing how cases turn out. Cases that you’ve taken that didn’t end successfully. Cases that you’ve taken that did end successfully, in spite of everything. So, you kind of just have to balance it up…Everybody has their own wrinkly nose, I’m sure. It almost becomes a little bit of a gut instinct, which is probably quite a random thing to say and maybe it's not, for everybody but a lot of the time, because of your experience and because you’ve been doing it for so long, somehow, it's not even that conscious.
Others’ Opinions Matter…Sometimes
It is rare that only one Crown Prosecutor deals with a case. Most cases are a group effort. So, whatever interpretation of the Code is made by an individual Crown Prosecutor and whatever values he or she might apply to the case to understand why a particular prosecution outcome results for a particular case we need to consider how Crown Prosecutors work together.
Most often, a case passes between a number of Crown Prosecutors as it travels from charge to disposal: one Crown Prosecutor may make the initial charging decision, another then reviews the case prior to court, a third then takes up the case in the courtroom. Decision-making on a single case is, therefore, a daisy chain of decisions involving a series of Crown Prosecutors. How they view the decisions of others and whether they feel empowered to alter the decisions of others are important factors in understanding the decisions that Crown Prosecutors make and therefore on the outcomes of the case in question.
A third of prosecutors who remarked on this issue emphasised how important consistency of decision-making between Crown Prosecutors was to them and that therefore they would not usually alter the prior decision of another Crown Prosecutors unless they were considered manifestly wrong (a fairly narrow scope). One said: Somebody else may disagree, and often we get some of our lawyers in my team who have made a decision and I say, ‘Maybe I would have done it the other way’, but actually I can see their point. Because it's not manifestly all wrong, I’m not going to overrule the decision. In cases that have been charged before I receive it, I have to consider whether we can definitely prove the charges that have been charged, and quite often I change charges because I think ones fit better, from the evidence or maybe easier to prove whilst still reflecting whatever the case is about.
Can the Police be Trusted?
Whilst the views and prior decisions of other Crown Prosecutors were, by and large, felt to be alterable by Crown Prosecutors later in the chain, the information provided by the Police was another issue entirely.
Prosecutors gave their views on the degree to which they trusted and used police information in their decision-making. Most prosecutors felt police summaries of a case to be reliable, with the following quotation being representative of the roughly half of respondents that said they did trust and use the police case summaries: Generally speaking, they’re pretty good. [W]e would never rely just solely on their summary, but it is a good guide in. If you’re looking for a way to get to grips with the case fairly quickly within five or ten minutes, that's a good way of doing [it]…Generally speaking, the police summaries are good. Prior to [working in the Complex Case Unit] and when I was a trainee barrister, when I was a Crown Advocate, the one thing you didn’t read was the police summary, you read the evidence…Because certainly in volume crime cases the [police summary] is very slanted, not necessarily accurate in terms of the evidence, and not a foundation on which to build a case…
The Issues of the Day
Values and interpretations matter, as well as relationships with other prosecutors and with the police. But, what happens when the Crown Prosecutor lifts their eyes from the desk, looks out of the window beyond the CPS office and looks to the goings on in the local area? How do Crown Prosecutors account for the local – and national – issues of the day in their work?
The Code asks Crown Prosecutors to consider ‘the impact on the Community’ as part of the Public Interest Stage of the Code Test. The majority of Crown Prosecutors who were asked about this issue (nine out of 11) reported considering local issues in their decision-making and balance the need to respond to local issues against the need to provide a measure of consistent decision-making as part of a national prosecution agency. For instance, an experienced Crown Prosecutor working in a magistrates’ courts team explained how they would alter their approach to considering the Public Interest to take account of a local issue: I think that's knowing the issues in your Area, that it's knowing the issues in terms of your stakeholders and working with the Police. [I]n my very first Area, there was an issue in relation to theft from churches, and… [so] we had a relatively hard-line approach to people who…caused damage to churches or broke into them, or steal things…I suppose that was a local issue. So, if we had youths, young people doing it, they’re more likely to be prosecuted in [Area] doing that, than perhaps somewhere else, like in [mentions an urban Area], or somewhere like that. In relation to some things, it's the police so in relation to city centre crime like that, like begging, drunk and disorderly it would be the police. You might get, I mean here [the Police and Crime Commissioner] has a particular interest in violence against women and girls and [the Commissioner] has driven quite a lot of work in relation to that. And I think from that the police have kind of prioritised [domestic violence] so again we're trying to proceed with cases where in the past probably, I mean we’ve shifted on from the ‘this is a domestic and you don’t deal with it’ you know very much gone past that. [T]here is an attempt I think to always try to consider what is going on. And I think our prosecutors will be quite good at asking for the basic level of information…[Y]ou know yourself when the riots kicked off in London, the chances are all of that's going to be prosecuted, even if you're doing a small thing in that, because it's part of a bigger picture. So, it is making sure you've got the information in place around what is the whole picture here.
Sometimes it Just Isn’t Worth the Candle
I now turn to what might be the most difficult and, perhaps, most controversial question facing a Crown Prosecutor – what price can be put on justice?
The importance of cost as a factor in Public Interest decisions within the Code Test has – on the face of the Code text – waxed and waned. Explicit mention of the costs to mounting a prosecution has moved in and out of the Code over the various editions; explicit in some (for instance, the 1986 and 1992 editions), implicit in others (covered under consideration about not taking forward a case likely to result in a nominal penalty). The 2013 Code, for instance, deals with cost directly as a public interest factor under proportionality, asking whether a prosecution is required on grounds of cost and ‘effective case management’, with little further information. It is perhaps no surprise, then, that Crown Prosecutors hold different views on the importance of cost in their case decision-making.
Over three quarters of Crown Prosecutors said that they took cost into account when considering how to proceed on a case, as these two quotes from Crown Prosecutors explain: We’re a public department. It's not our money, it's the taxpayer's money. Is it worth pursuing this particular matter to the nth degree, given the cost that it would, it wouldn’t be the sole factor but it's something that you would have to bear in mind? [I]f, for example, two weeks before this case reached court, he got a suspended sentence for the next 12 months and this is theft of cheese, yes fine. What's the point? He's going to plead not guilty. I’m going to spend £1500 of the public's money in order to not get anything more than a suspended sentence. To the victim of crime, terribly sorry, but… Until five years ago-ish we were told not to [take account of costs]. It was not part of a factor for consideration. I have to say I’ve not ever really thought, ‘Oh crikey, it's going to cost £X,’ because I don’t know how much it costs. I don’t know this trial is going to cost £X to run. It's not quite frankly at the forefront of my mind when I decide whether or not that offence should proceed. I think it's case specific…I tend to consider the effect on the victim…cost I think is not an issue, ever, but I think it is very case specific. So, I couldn’t say to you, well, this is the most important thing to me, I think it is just very subjective and it depends on the case.
Who is My Real Boss?
But, what if, as the decision-making process comes to completion, the decision is seen as a bad one, or incorrect in some way? Who does the Crown Prosecutor worry about if they had to account for their case decision?
Accountability of Crown Prosecutors and the CPS has been a core principle, and a contested one, since even before the creation of the CPS. The Government White Paper of 1983 that proposed an independent prosecution service (following the Phillips Royal Commission of 1981) 34 accepted that ‘The Royal Commission concluded that the present arrangements were unsatisfactory in a number of respects. In particular, the present system, in the view of the Royal Commission, is lacking in openness and accountability and does not make for consistency in policy and practice’ 35 (emphasis added). This question of to whom and how the CPS would be held accountable was a theme in the early academic discussions of the CPS too, with, for instance, Sanders,36,37 suggesting that whilst the national accountability arrangements allow for independence from local police force oversight, they lessened independence from the central government.
Prosecutors were asked who it was they felt they were accountable to when making a case decision and they responded with a range of views. The most common response given by prosecutors (around two-thirds of respondents) was that prosecutors hold victims in mind when thinking about to whom they feel accountable: The victim and the family. Very much so. Your boss is going to say something, but you’re not going to get your head chopped off for that, but if you made a mistake and who's really going to suffer from it? The damage you can do in a community when something's gone wrong. Not many go wrong, luckily, but yes, that's the driving force. Youths… you know, all of our decisions are capable of review in the higher… high court. You know, it doesn’t happen very often, but, you know, it's like when a Crown Advocate… you know, everything I did at court, potentially I could be arguing that in the Court of Appeal. [T]he ones that keep you awake at night are the ones where you think The Daily Mail will be demanding a prosecution here. However, a sense of natural justice would say that you’ve got to look at what you’ve got on your table.
Discussion
In considering these nine factors, three main observations can be drawn.
The Code is Only Half the Picture
The Code for Crown Prosecutors is an important document for understanding Crown Prosecutor decision-making. It is important not only because it is clearly central legally and in process terms to making a decision, but also, more practically, because, as we have seen, Crown Prosecutors report (on the whole) using it routinely in their decision-making.
Yet, most of the nine important factors that this research identified as important do not appear, or appear tangentially or briefly, in the Code text. A wider view of what is important in understanding Crown Prosecutor decision-making is needed, one that goes beyond simply looking at the Code for Crown Prosecutors.
A particularly useful schema for thinking about Crown Prosecutor decision-making in this light is Hawkins' 38 threefold ‘Surround, Field, Frame’. Hawkins researched decision-making in Health and Safety prosecutions and pointed to the need to consider the broader socio-political trends and issues that form a decision-maker's ‘Surround’, the specific rules, guidelines and constraints that form the ‘Field’ for a decision-maker's actions and the individual's own thoughts and perspectives that create the ‘Frame’ within which information is received, made sense of and processed before a decision is made. Hawkins' model can be usefully applied to Crown Prosecutor decision-making, encouraging us to think about the wider political surround (for example, the impact of local and national issues), the field (in which the Code and associated guidance rest) and the Crown Prosecutor's individual frame of reference (such as the family background or life experiences that affect decision-making). Other researchers into Crown Prosecution decision-making have found value in Hawkins' work. Fairclough, 39 for instance, used the ‘Surround, Field, Frame’ approach when examining special measure prosecutions in Crown Court trials and concluded that that ‘Hawkins's framework has potential as an explanatory device in decision-making contexts outside his own health and safety setting’. Hawkins' approach provides a way to integrate many different important factors – such as the nine identified above – and put them into a clearer relationship to each other, without necessarily giving primacy to some over others.
A Wide Variation in Crown Prosecutor Approaches
What is perhaps most striking from this research is not that there was a range of factors beyond the Code that Crown Prosecutors take into account, but the variation of views expressed upon those nine factors. For most of the nine factors, there emerged a fairly clear consensus in favour of a particular position. But, it is equally true that for most of the nine factors, there was also a clear minority taking a different view or views to the majority consensus. The variety with which these factors are interpreted by Crown Prosecutors suggests a lack of clarity or consensus about what the overall principles of prosecution should be. The overall picture one is left with is that despite some general agreement on some points, one can find within the CPS a number of Crown Prosecutors taking sometimes oppositional views on the same subjects. The discretionary ‘space’ left for Crown Prosecutors to operate within the constraints of the Code, guidance and statute is large. Dworkin 40 used the metaphor of a doughnut to explain discretion, with the dough representing the statute, rules and usual procedures that constrain the decision-maker, but the hole in the middle being the space within which the decision-maker can move freely to choose their own position, free of restrictions. In the world of Crown Prosecutors, the hole in the middle of discretionary doughnut is large – so large that almost contradictory positions can continue to coexist between CPS prosecutors.
This is the question of ‘organisational philosophy’ first identified in a prosecution context by Gelsthorpe and Giller 41 as ‘the system of ideas and procedures for constructing and implementing decision-making under the specific organisational conditions of the Prosecution Service’. Soubise, 42 writing most recently, identified that there is still a need to set out a clearer organisational identity for Crown Prosecutors because, in the face of increased managerialism in the CPS, there is an imbalance in power between the Crown Prosecutor and the police, ‘Crown Prosecutors themselves thus need to be convinced of their legitimacy to exercise [their] discretion, to foster public confidence in CPS decision-making’, suggesting that ‘publishing policies and guidance might inspire growing public confidence by promoting transparency and consistency’.
This leads one to the natural conclusion that the CPS may see fit to revise the Code, so that in future editions, it made greater reference to the underlying principles of prosecution decisions – the ‘system of ideas’ or organisational philosophy – rather than focussing more narrowly on the Code Test. The advantages of doing this are two-fold. First, if the Code were to do more to set out an organisational philosophy then the variation in approach between Crown Prosecutors may lessen, and this may in turn lead to more consistent and reliable decision-making. Second, a Code that addressed better some of the wider factors that are important to Crown Prosecutors than just those found in the Code would better communicate to the public the perspectives that Crown Prosecutors bring to their case decision-making. This might increase transparency and the sense of legitimacy enjoyed by the CPS.
More Research is Needed
The earlier part of this article drew attention to the paucity of research into the CPS generally, in particular when compared to the amount of available research into the other players in the criminal justice process. There is even less research into CPS decision-making. That is why the data presented in this article remain an important part of the picture despite the data gathering exercise having taken place some years ago: the data address some issues hitherto unfocussed upon; they are gathered directly from frontline prosecutors; and the research helps plug the gap in knowledge about the CPS and its prosecutors.
Yet, whilst the research in this article begins to plug that gap – as does the recent excellent work of Young and Sanders, 43 Rogers,44,45 Sosa, 46 Soubise,47,48 Fairclough, 49 Sanders,50–53 Porter, 54 Hodgson et al., 55 and Welsh et al. 56 – there is still much more that needs doing. The interviews with Crown Prosecutors described in this article show that there are many factors that influence decision-making and wide variety within each factor. Each of the nine factors in themselves needs further unpacking and a better and deeper understanding be sought. Further research will also surely challenge some of the nine important factors identified in this article and question their importance; other factors may be identified and added. This is all to the good: the body of work that seeks to understand Crown Prosecutor decision-making is in its infancy (a mere 30 years after creation of the CPS…), and research must necessarily therefore paint a picture in broad brush strokes. Further refinement is required.
Footnotes
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work is supported by the Crown Prosecution Service.