If something is broken, then we should fix it. If we can’t fix it, then we should replace it. The Crown Prosecution Service (CPS) is no longer able to give timely charging advice (namely while the suspect is under arrest and in the cells); not because of anything the CPS has done, but because it does not have the resources or the people to do what it used to. We have tried to fix it together over the last two years, but the plasters are not sticking – and things are getting worse. So for the sake of victims, witnesses and all in the criminal justice system, we need to replace it now, by restoring to the police the ability to charge most offences while suspects are in the cells.
As metropolitan chief constables with decades of policing experience between us, we recall having joined policing shortly after the introduction of the 1984 Police and Criminal Evidence Act (Pace), with grumbling detective colleagues still mourning the demise of “judges’ rules”, the long-standing guidelines that related to police questioning – and the acceptability of the resulting statements and confessions as evidence in court.
Like Pace, the creation of the independent CPS was exactly the right thing to do. However, the current tortuous means of progressing cases to court is absolutely unprecedented.
Over the last 20 years, there has been a series of moves away from police custody sergeants making charging decisions to the current system, where only the CPS can decide, save in the most minor cases. Police officers now have to tell victims every day that they need to seek CPS “permission” to charge. Initially, this worked when CPS lawyers were in many police stations, during office hours, making decisions.
However, as resources and the CPS operating model changed through austerity, this service morphed into a telephone advice model called CPS Direct. It would be fair to say that the majority of frontline police officers, ourselves included, were unimpressed with how time-consuming and how bureaucratic that system became. Then, two years ago, ahead of the Covid restrictions, the CPS temporarily suspended the ability to get telephone advice because of its resourcing issues. That situation still remains – and there is no solution in sight. We now send them an electronic file for a charging decision which they now consider and advise us upon. This still takes some considerable time, especially when we have someone in the cells.
The result is officers having to tell victims and witnesses that they have been caused to release the suspect “under investigation” or at best “on bail”. This does nothing to help victims and witnesses, build their confidence or feeling of safety – and does nothing to deliver the notion of “speedy justice”.The answer is simple. The CPS is unable – and is likely always to be unable – to make charging decisions while the suspect is in the cells. So the director of public prosecutions needs to give the right back to the police to make charging decisions there and then in far more cases: domestic abuse, harassment, burglary, robbery, theft, knife crime, violent crime. We used to do this; officers want it, victims want it, defence lawyers want it, and we are sure the courts do too, but the system keeps saying no.
Where is the evidence to support our call? In March 2015, 16% of crimes were resolved with a charge and/or summons and now it is 5.6%. This is not because police have suddenly become less effective. It is because of so called attrition, where victim disengagement occurs and results in fewer charges due to those victims being worn down by time delays and a feeling of being unsupported by a seemingly faceless and insensitive system.
Recent coverage of how charge rates for a variety of criminal offences have declined over time against recorded crime shows there has to be a more efficient and effective method of supporting the system. It is OK to acknowledge things have changed, that the CPS does not have the resources it used to.
Parliament made a very important decision to establish the CPS as the public prosecutor in England and Wales. Successive iterations of director’s guidance from the director of public prosecutions (DPP) mandate how police forces must compile files of evidence, what offences are “chargeable” either directly, while a person is in police custody, or via a postal method for those persons dealt with voluntarily and reported for summons. That should all continue.
The CPS, like many other public bodies, including the police and courts, had to change through austerity, leading to a commensurate reduction in capacity. Yet we appear to be trying to do the same things.
Despite recent funding increases and a shift in charging advice surrounding serious sexual offences, all too often our CPS colleagues appear to be far too thinly spread. Despite their best efforts, turning round a decision can often take much longer than they would like.
The CPS should always conduct all criminal prosecutions. It should be allowed to concentrate its skills upon the most challenging and complex of cases that need to naturally make their way to the crown court. They should continue to own and uphold the standard for the charging threshold.
The challenges are many, not least the backlog work currently being undertaken in the magistrates and crown courts, but 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.
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Craig Guildford is chief constable of West Midlands police; John Robins is chief constable of West Yorkshire police; Stephen Watson is chief constable of Greater Manchester police
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