Prosecuting by consent

A public prosecution service in the 21st Century

The Director of Public Prosecutions, Ken Macdonald QC described his vision of the Crown Prosecution Service as a ‘properly empowered … organisation of stature, at the heart of criminal justice’. He did admit that ‘there is a long way to go’ before his vision is realised.

Although the office of Director of Public Prosecutions dates back to 1879, the CPS is a relatively recent creation, having its genesis in the Prosecution of Offences Act 1985. Despite the fact that ‘the remit granted to the new CPS was as notoriously limited as its funding’, it still quickly became unpopular with the police and sections of the press. A system that was ‘literally incompetent’ served only to clog the courts unjustifiably, with miscarriages of justice as a by-product.

Mr Macdonald praised his predecessor, David Calvert-Smith QC, for recognising the problems of the CPS and resolving to instigate improvements in what he calls ‘the biggest law firm in the country’. Since the turn of the millennium, the CPS has gained public respect for:

  • communicating with the victims of crime
  • increasing its engagement with the public
  • improving its care of witnesses
  • returning to closer working with the police.

It is now ready for ‘the most radical stage in its development’. Prosecuting by consent requires the CPS to adhere to the twin principles of accountability and independence as it ‘begins at last to shoulder its appropriate share of responsibility in criminal justice’.

The ‘old fashioned idea’ that criminal justice should somehow be remote and above community engagement was ‘elitist and obscurantist’. The CPS was actively seeking that engagement, through consultation with community groups, the voluntary sector and other agencies. From the threat of a formal Commission for Racial Equality investigation in 2001 to a place on the short-list of The Guardian’s Diversity Awards, the CPS has already come a long way.

Building on increased public confidence and community engagement, the DPP planned to create a CPS that was ‘world class in decision making, case-building and presentation, staffed by talented people and seen as a world class employer’. He identified the practical steps he needed to take in order to realise this ambition as:

  • early advice and charging
  • pre-trial interviews of witnesses
  • conditional cautioning
  • developing a cadre of trial lawyers.

Ken Macdonald recognised that this was an ambitious vision, but identified lack of ambition as the reason that the CPS has failed to serve the public interest in the past.

The CPS should, like other British legal institutions, be admired and respected all over the world:

More power to determine and to shape cases, more engagement with the community, more respect for victims and witnesses, a greater role in court, profound attachment to independence and the possibility, finally, of judicial appointment – these, I think, are the features of a prosecuting organisation which is fit for public purpose. They are also the building blocks of our future.

Tom Sargant was JUSTICE’s Secretary from the organisation’s foundation in 1957 to his retirement in 1982.


 Prosecuting by Consent