On 25 February The Times published an internal CPS email which laid bare the criteria which some of its London branches have been using to decide whether the prosecution’s case should be represented in court by a CPS in-house advocate or an external barrister. In essence, the email recommends that cases which seem the least likely to be problematic for a prosecutor and those which are most likely to earn a higher fee should ideally be reserved to the employed advocate with the dross being farmed out to the barrister.
In an hurried attempt to pre-empt and so contain the ensuing outcry from the Bar, the DPP disavowed this email. Stating the obvious, he also emphasised that it offended the CPS’ published policy on briefing barristers. Reassuringly, he added that “and as soon as I found out about it I had it withdrawn.” Whilst it would be wrong to treat this email as a basis for inferring that the CPS practice is generally in conflict with its policy, this episode nonetheless demonstrates that senior civil servants, in this case middle-ranking CPS managers responsible for hundreds of CPS prosecutions, do take money and their organization’s convenience into account when making decisions which are supposedly made selflessly and in the public interest. In fact these managers appear to have applied criteria which are inimical to such an interest.
Perhaps we should not be astounded by this revelation. Amidst an era of austerity where prosecutorial budgets are cut year on year, it is perhaps unsurprising that the thinking behind this email developed. It is a rational, albeit disturbing, response to invidious working conditions.
The importance of this fiasco (or as the Lib Dems said yesterday about their crisis, a screw-up) is that it comes at a time when the Government is commending to Parliament a reform to how companies who commit serious criminal offending should be dealt with. The US model of a deferred (but in reality, non) prosecution agreement is presented by the Ministry of Justice as a new and effective weapon capable of combating such crime more effectively. The link between this parliamentary move and the CPS email is that in relation to the former, it is claimed that the critical prosecutorial decision as to which company will be offered the concession of a DPA and which will face the rigour of a prosecution will be made wholly in the…public interest.
Whilst the corporate lobby has uniformly supported the introduction of DPA’s, the CPS email ought to be a salutary warning to be careful 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 in this way will tempt a prosecutor faced with a seemingly weak case which 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 over a substantial sum of money to avoid the risk of litigation.
The lure of gigantic money settlements in the US in the form of a DPA has led to increasing concerns of an unhealthy desire, and in some instances an unseemly competition, between US prosecutors to feast upon the corporate carcass. Last December for example it was widely rumoured that the US DPA’s entered into by Standard Chartered Bank and HSBC, by which these banks stumped up $2.5 billion, lacked any rationale other than ensuring that none of the gang of US agencies involved received less than another.
When a system invests a prosecutor with a seemingly arbitary power to extract money in sums of this scale from companies anxious to escape prosecution, the dangers of a form of corruption of their role loom large. Enough to make what happened this week to the CPS seem like a storm in a teacup.