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26 Mar 2013

Corker Binning partner comments in The Lawyer on CPS email fiasco

In an article in The Lawyer, David Corker, partner, Corker Binning warns that CPS’ worrying email on prosecutions is nothing compared with the dangers that could accompany DPAs.

Heed the warning of CPS fiasco

Last month The Times published an internal Crown Prosecution Service (CPS) email laying bare the criteria some CPS London branches have been using to decide whether the prosecution’s case should be represented in court by a CPS advocate or an external barrister. In essence, the email recommends the cases that seem least likely to be problematic for a prosecutor and those most likely to earn a higher fee should be reserved to the employed advocate, with the dross being farmed out to barristers.

In a hurried attempt to contain the outcry from the bar, the director of public prosecutions (DPP) disavowed the email. Stating the obvious, he said it offended the CPS’ policy on briefing barristers. Reassuringly, he added that “and as soon as I found out about it I had it withdrawn”.

While it would be wrong to infer from this that CPS practice is generally in conflict with its policy, the episode shows that senior civil servants, in this case middle-ranking managers responsible for hundreds of CPS prosecutions, do take money and their organisation’s convenience into account when making decisions supposedly made in the public interest. In fact, these managers appear to have applied criteria inimical to such an interest.

Perhaps we should not be so astounded. At a time when prosecutorial budgets are being cut year-on-year, the thinking behind this email could be seen as a rational, albeit disturbing, response to invidious working conditions.

The importance of this fiasco is that it comes as the Government is proposing reform to the way companies that commit serious criminal offences should be dealt with. The US model of a deferred (but in reality, non-) prosecution agreement (DPA) is presented by the Ministry of Justice as a weapon ­capable of combating such crime effectively.

The link between this parliamentary move and the CPS email is that it is claimed the critical prosecutorial decision as to which company should be offered a DPA and which face the rigour of prosecution will be made wholly in the public interest.

While the corporate lobby has uniformly supported the introduction of DPAs, the CPS email ought to be a warning – be careful for what you wish for.

Granting a prosecutor a wide discretion to accept a cash settlement in lieu of a charge may not turn out to be in its interest. An ability to settle cases this way will tempt a prosecutor faced with a seemingly weak case that will probably not stand up in court not, as now, to drop the case but instead to offer a DPA. Companies can thus become prey to unjustified pressure to pay up to avoid litigation.

The lure of gigantic money settlements in the US in the form of DPAs has led to concern over an unhealthy desire by – and, in some cases, unseemly competition between – prosecutors to feast on the corporate carcass. When a system invests a prosecutor with a seemingly arbitrary power to extract money from companies, the danger of a form of corruption of their role looms large. Enough to make the CPS affair seem like a storm in a teacup.

David Corker, partner, Corker Binning