16 May 2011

All change on charging?

One year ago the Home Secretary announced the introduction of a pilot scheme to pave the way for the gradual restoration of charging powers to the police. In her speech on police bureaucracy on 12 May 2011, Theresa May confirmed that the reforms had received such a positive response that the pilot would be extended by doubling the number of charges that the police can now preside over.

Whilst the CPS will retain the power to charge in the most serious and complex of cases, it is estimated that the new proposals will return to the police the power to charge defendants in 80% of criminal cases in England and Wales. This will reverse to a great extent the regime which saw the police initially lose conduct of criminal prosecutions by virtue of the creation of the CPS (pursuant to the Prosecution of Offences Act 1985) and latterly, in the course of the last six years, the power to decide on charge in many offences.

Theresa May estimates that this policy reversal, together with other proposed reforms, could save over 2.5 million police hours every year.  The driver behind the proposal is the need to reduce the public deficit.  Practitioners will not in principle object to reforms where money is saved but there will be concern that the decision goes against the principles which led to the creation of the CPS, including the general consensus in the mid 1980’s that the police often “over charged” or charged too many offences against an individual defendant or even got the charges wrong.  This practice was seen as leading to a large number of cases unnecessarily finding their way to the Crown Court which in turn was rightly seen as unfair to individual defendants but also heavy on the budget:  large numbers of cases being heard unnecessarily in the Crown Court hiked up the cost of the prosecution and the then spiralling legal aid fund.

Until 2006 the CPS had the discretion to initiate proceedings in place of the police where it saw fit but the police retained the power otherwise to charge. Guidance then issued by the DPP effectively took this power away from the police and placed it in the hands of the CPS in all but the most minor of cases where a guilty plea seemed likely. Whilst the current requirements for the CPS to advise on charge in the vast majority of cases has at times undoubtedly delayed the institution of proceedings, the system has benefited from the independent perspective from which crown prosecutors approach their cases.


On the bright side, practitioners may be pleased that they will once again be able to make representations on charge prior to the police making a decision, rather than having to sit back and await the decision of a prosecutor who, for internal reasons, is either unable or unwilling to engage with the defence prior to the institution of proceedings.

Corker Binning is a law firm specialising in fraud and criminal work of all kinds.  For more information call us on 020 7353 6000.

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