Relations with other prosecuting agencies
Principle
Statutory Duty
The CPS has a statutory duty under Section 3(2)(a) of the Prosecution of Offences Act 1985 (the Act) to take over the conduct of all criminal proceedings, other than specified proceedings, instituted by or on behalf of the police. This duty is subject to the provisions contained in the Criminal Justice Act 1987.
The CPS also has discretion to take over criminal proceedings in any other case under Section 6(2) of the Act.
Other government departments also have a statutory duty to prosecute alongside the CPS.
Prosecutions are regularly brought by other prosecuting agencies where the body concerned has a particular expertise or statutory interest. In general the CPS will neither wish nor need to intervene in such cases.
However, there are some circumstances in which it may be appropriate to:
- take over the conduct of proceedings which would otherwise be pursued by another body; the CPS will only do this against the wishes of the other prosecuting agency or body in wholly exceptional circumstances where all other avenues of discussion have been exhausted; or
- assign CPS proceedings to be conducted by another prosecuting agency where it is agreed that they have the lead or major interest.
Prosecutors’ Convention
This is an agreement between the CPS and prosecution authorities (including: Attorney General's Office, Civil Aviation Authority, Department for Business, Energy and Industrial Strategy, Department for the Environment, Food and Rural Affairs, Department of Work and Pensions, Environment Agency, Financial Services Agency, Food Standards Agency, Gambling Commission, Health and Safety Executive, Information Commissioner’s Office, Maritime and Coastguard Agency, Office of Fair Trading, Office of Rail Regulation, Revenue and Customs Prosecutions Office (incorporated into the CPS in 2010), Serious Fraud Office and Service Prosecuting Authority) to abide by broad principles which promote improved liaison and a coordinated approach to decision making where two or more signatories have a common interest.
The latest revision of the Convention was published on 11 December 2012. A copy of the Prosecutor’s Convention is available elsewhere in the Legal Guidance. Where a signatory to the Convention is involved or has an interest in a related prosecution the principles of the Convention are mandatory.
Where a prosecuting authority or agency is involved which is not a signatory then the principles of the Convention provide a framework for best practice and should, where practicable, be followed.
Signatories to the Convention should encourage associated prosecuting authorities and investigators to abide by the spirit of the Convention.
National Liaison
Strategy and Policy Directorate (SPD) is responsible for strategic liaison, maintaining and developing relationships between prosecuting authorities/agencies. Where an issue arises which cannot be resolved locally, SPD should be advised and will provide appropriate guidance.
Guidance
Institution of Proceedings
Difficulties may arise when it is not clear who has instituted proceedings or there are overlapping interests and the same subject is being prosecuted by different agencies, or a single investigation has revealed offences which are normally prosecuted by separate agencies.
Proceedings are instituted by the police only when they have investigated, arrested and brought the arrested person to the custody officer. A case is not instituted by the police simply because a custody officer at a police station charges the suspect (see R. v Stafford Justices ex parte Customs and Excise Commissioners (1991) 2 All ER 201 and Archbold Criminal Pleading Evidence and Practice 2019 Ed, paragraph 1-405)
Conversely, proceedings are instituted by another prosecuting agency when they have been solely responsible for the investigation and arrest of the suspect, even though he or she is taken to the police station to be charged by a custody officer.
The case should probably be conducted by another prosecuting authority if any of the following factors apply:
- the police did not conduct the majority of the investigation;
- the police were only involved in overseeing a search, effecting an arrest or assisting other investigators in the conduct of an interview;
- the other authority is in possession of all the main exhibits;
- someone other than a police officer is named on the charge sheet as the person accepting the charge or as the officer in the case.
Evidential and Practical Considerations
Proceedings in the magistrates' court or the Crown Court can only be properly joined together when the charges:
- are founded on the same facts or evidence; or
- form, or are part of, a series of offences of the same or similar character.
If the cases can be properly joined a prosecutor should also have regard to the following:
- the evidential advantages of a single set of proceedings;
- fairness to the defendant;
- the interests of witnesses;
- any financial savings which may result from a single set of proceedings.
In deciding who should have conduct of a single set of proceedings a prosecutor should discuss the issue with the other prosecuting authority/agency concerned and consider the following:
- the nature and gravity of the offences which are the subject of each set of charges or proceedings;
- the factors for early consideration highlighted at 3.1 of the Prosecutors Convention.
Common Prosecuting Interest
Where two or more prosecuting agencies are involved or may have an interest in a prosecution, consultation must always take place to determine the issues highlighted by paragraph 3.1 of the Prosecutors’ Convention. The Convention uses the term “related”, which means that two or more prosecuting agencies propose to prosecute the same individual or company for offences that may result in associated court proceedings. Often they may arise out of the same set of circumstances.
In cases in which it remains necessary for separate sets of proceedings conducted by the CPS and another prosecuting authority/agency it is highly desirable that the same prosecution advocate should be instructed in the Crown Court.
Assigning Proceedings
Where it is agreed that another prosecuting agency should take over the conduct of criminal proceedings in their entirety, it is possible to assign the proceedings instituted on behalf of the police under the terms of Section 5(1) of the Prosecution of Offences Act 1985.
Assignment gives the other agency day to day conduct of the proceedings, but the case remains the responsibility of the CPS. The duty of review does not cease and the CPS should continue to deal with:
- the representations to be made as regards bail or custody;
- the acceptance of pleas;
- unused material.
Any person conducting proceedings assigned under Section 5(1) shall have all the powers of a Crown Prosecutor but shall exercise those powers subject to any instructions given by a Crown Prosecutor.
Requests to Take Over Proceedings
Where the CPS is asked by an outside agency to institute or take over proceedings in the absence of a related police prosecution, only in wholly exceptional cases would the CPS exercise its authority to take over proceedings under Section 6(2) of the Prosecution of Offences Act 1985 against the wishes of the prosecuting agency.
The decision to take over proceedings should always be taken at Chief Crown Prosecutor or CCD Head level and the CPS should only accede to such a request if satisfied that there are particular difficulties or other significant public interest considerations that merit involvement. The following factors are a guide only:
- the proceedings have been brought in blatant disregard of the Code for Crown Prosecutors;
- there is an unsatisfactory reason for the withdrawal of proceedings or a failure to proceed.
Where the CPS takes over the conduct of proceedings the Service assumes complete control of them.
Active Intervention
In certain circumstances, the CPS will take the initiative and intervene in a private prosecution conducted by a body which regularly institutes criminal proceedings and which is recognised as possessing a particular expertise about matters in respect of which it prosecutes. It will be very unusual for the CPS to intervene in such a case, but the wider public interest may on rare occasions support intervention particularly where:
- there is a danger that the prosecutor is about to stop an undoubtedly important case for what may be an inappropriate reason; or
- where the police, the CPS, or any other public prosecutor had promised the defendant that he would not be prosecuted at all (a promise of an immunity from prosecution) not including cases where the prosecuting authorities had merely informed the defendant that they would not be bringing or continuing proceeding; or
- where the defendant has already been cautioned for the offence, and the giving of the caution was in accordance with Home Office cautioning guidelines.
Procedure
Advice Generally
The CPS should not provide advice or guidance unless it is clear that:
- the CPS is the appropriate prosecutor;
- that a Crown Prosecutor is in full possession of all the relevant facts; and
- the file accords with the Manual of Guidance.
Provision of Advice
In advice cases where a criminal offence is revealed that could or would normally be prosecuted by another prosecution authority the prosecutor should check that the police have notified the relevant prosecution authority/agency and consider whether the case may be more appropriately handled by the authority/agency concerned.
Where there may be some doubt as to the appropriate authority the prosecutor should always discuss the matter with the other prosecuting authority/agency with an interest and agree who is to prosecute the matter.
Consent to Prosecute
Where the CPS takes over the conduct of proceedings a prosecutor must ensure that any consent to the institution of proceedings which is required from a person other than the Director is obtained before proceedings commence. This applies particularly in Revenue and Customs prosecutions.
Assigned Cases
Where another prosecuting authority/agency has the major interest in a prosecution or primacy has been agreed it may be appropriate to consider assigning CPS proceedings to that authority/agency.
Where a case is assigned under Section 5 of the Prosecution of Offences Act 1985, a prosecutor must send standard letters of assignment to (where appropriate):
- the other prosecuting agency;
- the defendant or his or her solicitors;
- the police; or
- the court.
In assigned cases the CPS should not withdraw or discontinue the case.
Assigned Cases: Costs
When criminal proceedings are assigned under Section 5 of the Prosecution of Offences Act 1985:
- the CPS must not ask the other prosecuting authority to seek any costs which we may have incurred;
- it is not appropriate to make any contribution towards the expenses of the other prosecuting agency in conducting the CPS part of the case.
When the CPS take over the conduct of a case under Section 6(2) of the Prosecution of Offences Act 1985, the CPS must only seek the costs the Service has incurred in the conduct of the case. This does not apply where the CPS takes over the conduct of private prosecutions. Where the conduct of a private prosecution is taken over by the CPS the power of the court to order payment of prosecution costs out of Central Funds extends only to the period prior to the intervention of the CPS (see Criminal Practice Directions 2015 Division X Costs, paragraph 2.6.5).
Health and Safety Executive (HSE)
Work Related Deaths
A protocol has been developed between the CPS, HSE, National Police Chiefs’ Council, Care Quality Commission, Care and Social Services Inspectorate Wales, Healthcare Inspectorate Wales, Local Government Association (representing local authorities), Welsh Local Government Association, British Transport Police, , Office of Rail and Road, Maritime and Coastguard Agency, Medicines and Healthcare products Regulatory Authority: Medical Devices Division, Office for Nuclear Regulation, and Chief Fire Officers Association promoting a structured approach to liaison where there is a work-related death. A copy of the protocol is can be found below. Also available is the Work Related Deaths Protocol: Practical Guidance.
The protocol builds on the Prosecutors’ Convention and extends the principles of coordinated decision making to encompass the investigation stage.
The principles of the protocol must always be followed. Where there is an issue that impacts upon a principle articulated in the protocol the matter should be drawn to the attention of the CCP or Head of Division who may wish to consult the National Liaison Committee responsible for the strategic overview of relations between the signatories of the Protocol and other interested parties who also attend such as representatives from the Coroners Society and the Independent Police Complaints Commission.
Pre-charge Advice Manslaughter/Corporate Manslaughter
Where consideration is given to charging an individual with manslaughter in a situation envisaged under the Protocol, police should seek the advice of the CPS.
CPS Areas should be aware that where the offence concerns:
- allegations of gross negligence manslaughter;
- allegations of corporate manslaughter; or
- manslaughter against members of the medical or paramedical profession.
All such cases must be referred to Special Crime and Counter Terrorism Division.
Prosecution Under the Health and Safety at Work etc (HSW) Act 1974
Offences under the Health and Safety at Work etc Act 1974 may only be prosecuted by:
- Health and Safety Executive;
- Local Authority responsible for enforcement in certain establishments (e.g. shops and offices);
- Environment Agency; and
- CPS
Where the CPS is approached with a view to granting consent under Section 38 of the HSW Act 1974 the matter should always be referred to Special Crime and Counter Terrorism Division.
Where the Health and Safety Executive refer an incident to the police with a view to prosecution for offences other than under the 1974 Act, the case may be progressed locally.
Where, on review, a CPS prosecution may justify the inclusion of supplementary or complementary charge(s) under the HSW Act 1974, the Crown Prosecutor may find it helpful to discuss the matter with HSE Legal Advisers Office who are a valuable source of reference.
In all cases where HSE Inspectors were involved in an investigation either in the lead or assisting police the HSE will wish to recover their costs and the necessary application, informed by discussion with the HSE, should be made to the sentencing court.
Revenue and UKBA Prosecutions (Formerly RCPO)
The Revenue and Customs Prosecutions Office ('RCPO') was established on 1st April 2005 under the Commissioners for Revenue and Customs Act 2005 (CRCA). It created the post of Director of Revenue and Customs Prosecutions (DRCP) and authorised him/her to institute and conduct criminal proceedings in England and Wales relating to criminal investigations by the Revenue and Customs.
Section 37 of the CRCA authorised the DRCP to designate any member of RCPO (to be known as a Revenue and Customs Prosecutor) to exercise any of his functions. It was from this provision that RCPO prosecutors derived the authority to institute and conduct criminal proceedings in relation to criminal investigations carried out by the Revenue and Customs.
Certain offences, detailed below, could only be prosecuted by agencies other than RCPO with the consent of the DRCP (or the Commissioners of Revenue and Customs or one of the Law Officers; (see Section 145(1) of the Customs and Excise Management Act 1979 (CEMA)). The DRCP's power to grant consent could not be delegated; i.e. the DRCP had to personally make the decision with regard to the granting of consent to prosecute those offences which required consent.
Following the merger of the RCPO with the CPS on 1st January 2010, the Director of Public Prosecutions was appointed as DRCP. The two roles which the Director currently holds derive from two separate pieces of legislation, i.e. the CRCA (in respect of his/her role as DRCP) and the Prosecution of Offences Act 1985 (in respect of his/her role as DPP).
Section 40 of the CRCA provides that a member of the RCPO may not disclose information which it holds in connection with any of its functions and which relates to a person whose identity is specified in the disclosure or can be deduced from it. A person who does so commits an offence. The rationale behind this prohibition is the need to ensure that the confidentiality of taxpayers’ personal information is preserved.
This means that although the DPP and the DRCP are one and the same person, a request to prosecute can only be considered by him/her when acting as the DRCP and never as the DPP, as this could risk a breach of Section 40 of the CRCA.
Any prosecutor can institute proceedings in respect of offences under the Customs and Excise Acts. This phrase is defined in Section 1(1) of the CEMA to include, as well as CEMA itself:
- the Customs and Excise Duties (General Reliefs) Act 1979;
- the Alcoholic Liquor Duties Act 1979;
- the Hydrocarbon Oil Duties Act 1979;
- Tobacco Products Duty Act 1979; and
- 'any other enactment for the time being in force relating to customs or excise'.
Section 145(1) of the CEMA also applies to offences under the Value Added Tax Act 1994, and certain other revenue offences. See the Legal Guidance on Consents to Prosecute, Annex 1 Part 2, for a full listing of the relevant offences.
All former RCPO prosecutors in the CPS retain their designation and have the authority to institute and continue proceedings in relation to Customs and Excise Act offences. This includes former RCPO lawyers in the Central Fraud Group, all lawyers in the UKBA Unit within Organised Crime Division and all former RCPO lawyers within the Proceeds of Crime Unit.
Where any non-RCPO designated lawyer (whether from the CPS or from any other prosecuting authority, for example DEFRA or DWP) wishes to institute proceedings for a Customs and Excise Act offence, the consent of the DRCP must be sought and obtained (Section 145(1) CEMA).
The UK Border Agency (UKBA) took over investigation of all non-fiscal smuggling offences in December 2009. On 2 December 2009 the Attorney General assigned to the DPP the power to prosecute UKBA investigated cases using the general power of assignment under Section 3(2)(g) of the Prosecution of Offences Act 1985. Where a designated RCPO prosecutor institutes such proceedings, consent is not required and the case can be passed to another CPS division, unit or area for it to be progressed. In all other cases, the DRCP's consent will be required.
For the Procedure for obtaining consent, prosecutors should refer to the Legal Guidance on Consents to Prosecute.
Service Prosecuting Authority (SPA) - Protocol on the Exercise of Criminal Jurisdiction in England and Wales
The Service Prosecuting Authority (SPA) was formed on the 1st January 2009 (with the incorporation of the Navy Prosecution Authority, Army Prosecuting Authority and Royal Air Force Prosecuting Authority).
The role of the SPA is to review cases referred to it by the Service Police or Chain of Command and to prosecute appropriate cases at Court Martial or Service Civilian Court.
A Protocol regarding the exercise of criminal jurisdiction in England and Wales, was agreed between the Director of Public Prosecutions, the Director of Service Prosecutions, and the Ministry of Defence, and signed in September and October 2011. The principles of the Protocol have also been approved by the Attorney General. The Protocol sets out the principles to be applied when there is concurrent jurisdiction between the mainstream criminal courts and the courts martial (service justice) system, and provides a framework for how cases may be handled by the CPS or Service Prosecuting Authority (SPA).
The Protocol has been created to assist prosecutors in determining the most appropriate jurisdiction in which to charge and subsequently try someone subject to service law where the offence was committed in England or Wales.
The Protocol updates and replaces the guiding principles set out in paragraphs 12.17 to 12.25 of the Home Office Circular 35/1986.
The Protocol makes clear that its effectiveness depends in part on appropriate decisions being made as to which police force(s) undertake the investigation; ie - whether the investigation is undertaken by one of the Home Office Police Forces, Ministry of Defence Police (a civilian force) or Service Police.
Where there is an issue as to the appropriate jurisdiction in which to deal with a suspect who is subject to service law, the Director of Public Prosecutions and the Director of Service Prosecutions should consult to discuss which is the appropriate jurisdiction to deal with the case as described at paragraph 2.3 of the Protocol.
Paragraph 2.4 also provides a description of other factors which may need to be taken into account, and may affect the application of the overriding principles at paragraph 2.2.
Employment Tribunals
Employment tribunals now operate subject to the provisions of the Employment Tribunals Act 1996 (a consolidation Act, originally the Industrial Tribunals Act 1996).
Employment Tribunals have the power to secure the attendance of witnesses and the production of documents by the issue of summonses.
Pursuant to Section 7(4) of the Employment Tribunals Act 1996, a person who without reasonable excuse fails to attend the tribunal to give evidence, produce documents, furnish information when required to do so, is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
The authority to prosecute offences, other than those referred to the Service by the police, derives from Section 6(2) Prosecution of Offences Act 1985. Generally speaking, the police will not be involved in these cases: the relevant office of the Employment Tribunal will provide the evidence. CPS may, however, invite the police to conduct an investigation if appropriate.
Serious Crime Prevention Orders
The CPS has signed a Memorandum of Understanding (MoU) with a number of other prosecuting authorities, to establish the operational process between the agencies to enable the CPS to apply for SCPOs on behalf of other prosecuting authorities (including: Food Standards Agency, Insolvency Service, FCA, Natural Resource Wales, Environment Agency and Competition and Markets Authority).
The purpose of the MoU is to establish a robust operational process between agencies, to enable the CPS to apply for SCPOs on behalf of other prosecuting authorities within the Whitehall Prosecutors’ Group.
The MoU is not a legally enforceable instrument, but the parties to it will act in good faith and nevertheless consider themselves to be bound by its terms.
The CPS will make applications on behalf of other prosecutors for SCPOs, including those incorporating terms previously sought under an FRO. Applications for an SCPO are made to either the Crown Court or the High Court (see paragraph 11).
Prosecutors should reference to the Legal Guidance on SCPOs for further details.
Extradition
Extradition is the formal process for requesting the surrender of requested persons from one territory to another for the following purposes:
- to be prosecuted;
- to be sentenced for an offence for which the person has already been convicted; or
- to carry out of a sentence that has already been imposed.
In cases involving export extradition (i.e. out of the UK), the CPS Extradition Unit represents the foreign authority seeking the return of the requested person. The CPS Extradition Unit provides advice to foreign judicial authorities on the content and validity of extradition requests received from the NCA or Home Office and represents foreign judicial authorities in extradition proceedings at Westminster Magistrates Court, the High Court, and the Supreme Court.
The CPS’ statutory role is defined in general terms by Section 190 of the Extradition Act 2003 and Section 3(2)(ea) of the Prosecution of Offences Act 1985. The role of CPS was considered in R- v- Director of Public Prosecutions ex parte Thom [1996] Crim. L.R. 116 and in Government of Germany v Kleinschmidt [2005] EWHC 1373 (Admin) at paragraph 2 where Beatson J stated “The Crown Prosecution Service acts as a private solicitor on behalf of the requesting state in extradition proceedings unless the requesting state wishes to instruct other solicitors.”
Prosecutors should reference to the Legal Guidance on Extradition and the Extradition Handbook for further details.
Useful References
R v Stafford Justices ex parte Customs and Excise Commissioners (1991) 2 All ER 201
Disclosure Manual Legal Guidance - Chapter 32 - Co-ordination of Disclosure Issues involving Multiple Police Force and Multiple Agency Investigations Within the UK
Abuse of Process Legal Guidance
Work-Related Deaths: A Protocol for Liaison
Link to the protocol for liaison - on the Health and Safety Executive website
CPS - SPA Concurrent Jurisdiction Protocol