Criminal Procedure: Independent Prosecutors

HL Deb 26 July 1982 vol 434 cc97-117

9.38 p.m.

Lord Wigoder rose to ask Her Majesty's Government whether they are taking any steps to implement the proposals for a system of independent prosecutors in Part II of the Report of the Royal Commission on Criminal Procedure, revised as necessary to make the system national rather than locally based.

The noble Lord said: My Lords, we now at last come to the important part of the day's business! I beg leave to move the Motion in my name on the Order Paper.

The Royal Commission, as your Lordships will know, reported in January 1981. Part II, a very substantial part of that report, is devoted entirely to the prosecution of offenders—Chapter 6 to discussing the present position and Chapter 7 to putting forward a number of radical proposals for the reorganisation of the whole system. Those proposals were radical. They were not new; they had been discussed on many previous occasions and they raised issues of very great importance as to who it is who should investigate the commission of an offence, who should take the decision to prosecute, who should conduct the proceedings and to whom should each of those people be responsible.

This has been the subject of debate for many years. Justice, I think—and the noble and learned Lord, Lord Gardiner, will know more about this than I—has raised this problem on many occasions going back for over 20 years. In 1962 the Royal Commission on the Police made proposals similar to those contained in the recent Royal Commission report. The reason why bodies of various nature have raised these issues is because they are not academic issues; they are issues of fundamental importance to the whole administration of justice.

It is important that the right decisions should be made as to who should be prosecuted and for what offence, because if the wrong decisions are made acquittals inevitably are obtained and a vast amount of time and money is wasted in the result. It is important that our whole prosecuting system would give the impression of being fair, and there are obvious dangers if those who carry out the investigation—that is, inevitably, police officers—are exactly the same people as those who take the decision to prosecute and are exactly the same people as those who proceed in the magistrates' courts to conduct the prosections.

I am not suggesting that the belief is justified, but the belief is inevitable that if that system prevails there will be those who will be tempted to press for convictions; there are those who will be tempted not to make available evidence that ought to made available to a court if a more independent system were adopted. It is a matter of importance to the whole community that our prosecution system should be seen to be open and should be recognised to be properly accountable. It is a matter of importance to all of us that it should be efficient—efficient in the sense that there should be uniform standards applied throughout the country and that prosecutions should be conducted by people of ability who fully understand the issues and are able to take an independent and dispassionate view of the procedures.

The present position, as I indicated to your Lordships, is analysed in some detail in Chapter 6 of the Royal Commission's report. Their findings, briefly, are that the present position is throughly unsatisfactory. I think perhaps to call it chaotic would not be putting it too strongly. This is, first, from the point of view that anyone in certain circumstances may prosecute. There is no uniformity; there is no control. Secondly, in some 33 out of 43 police authorities—if I have the figures precisely correct—there are prosecuting solicitors who conduct proceedings but do so in a variety of different relationships to their own police force, whereas in the remaining 10 of the 43 areas reliance so placed in one way or another upon private firms of solicitors. Thirdly, the role is confused as to the position of the Director of Public Prosecutions and the various other prosecuting agencies that carry out a substantial number of prosecutions in our courts.

Without referring in any more detail to the analysis in Chapter 6, the first question upon which I should like the Minister's assistance this evening is this: do the Government accept the analysis in broad terms in that chapter of the Royal Commission's report, and do they therefore accept that some steps must be taken to rectify the position? I am not asking the Minister to do very much more than confirm what the Home Secretary said in the debate in the other place on 20th November 1981 at column 532 of Hansard, when he said: At a minimum, we should like to see the more comprehensive development of prosecuting solicitors departments which, at present, exist in only about three-quarters of the police forces That was the Home Secretary's observation. Mr Mayhew, when he wound up for the Opposition, said at column 590 of Hansard: We believe, as my right honourable friend said, that, in the first instance, and, as he said, at the minimum, there should be an extension of the county prosecuting solicitors departments. It is right, in my view at any rate, that prosecuting solicitors should have responsibility for the fundamental decisions connected with the running of a prosecution.

Assuming, as I do, that the noble Lord the Minister is going to say that the Government stand by that general position, the second question follows at once from that: What are the Government going to do about it and what steps are they going to take as a minimum, as his right honourable friend said in another place, in order to ensure that there is a national network of county prosecuting solicitors' departments?

Turning now to Chapter 7 of the commission's report, what proposals do they make in order to deal with the present situation? First, there arises the question of the present position, that the police investigate and also take the decisions to prosecute; it is then for the solicitor to take over. That is, in broad terms, what the Royal Commission approved. They preferred that to the position with the procurator fiscal in Scotland; and I shall listen with interest to what my noble and learned friend Lord Wilson of Langside has to say on this point, that the actual decision to prosecute should be taken out of the hands of the police and put into the hands of the prosecution's solicitor.

It may be, as the Royal Commission suggested, that in this country this is perhaps a somewhat grey area and it is difficult to form any clear demarcation line; that is why they suggested the matter should be left as it is. I would ask the Government whether they agree with that finding of the Royal Commission, or whether they feel it would be preferable to accept the Scottish system and have a rather more distinct separation between the investigation and charge on the one hand, and the decision to prosecute on the other.

Secondly, the Royal Commission dealt with the question, where there is a prosecuting solicitor—and it is hoped they will be everywhere in the near future—should it be the prosecuting solicitor or the chief constable who, in the last analysis, has the right to withdraw a prosecution or a charge? That is not a matter upon which I would express any strong feelings because I should have thought that in most well-organised authorities and with a little goodwill and commonsense, the prosecuting solicitor and the chief constable would be on such terms that any dispute would be unlikely. But I should like to ask the Government whether they have any view on that particular problem which was dealt with in the Royal Commission report.

Thirdly, the Royal Commission recommended that prosecuting solicitors should prosecute; in other words, that they should take over in the magistrates' courts the advocacy which at the moment in many cases is conducted by police officers. That is obviously desirable in the interests of appearing to be fair, and I make no criticism of the way in which police officers conduct prosecutions. Equally, it will save a good deal of police time. I hope it might be possible for the Minister to indicate how many police officers are employed, either part-time or full-time, on this task of presenting cases at the magistrates' courts; how many of them could thus be put back on duty if the work were taken over by prosecuting solicitors and what cost, in terms of police officers, would thus be saved.

Fourthly, the Royal Commission suggested that the framework of police prosecuting authorities should be based locally and should be accountable to local bodies especially established for that purpose. When the Royal Commission report was debated in the other place on 20th November last, it was the whole of the report that was debated and not simply Part II of it, which we are discussing this evening. But, in so far as most of the Members of another place who spoke dealt with Part II to some extent, opinion was almost unanimous—I think that there was only one dissenting voice—first, that the Philips proposals, in general terms, that there should be a national framework of prosecuting authorities, was desirable; and, secondly, all except one suggested that it would be better if it were done on a national basis, rather than on the local basis that the Philips Commission had reported. That is why, in the terms of the Question that I am asking, I have stressed the desirability of the national, rather than the local, basis.

It is clearly an arguable matter, but there are grounds for suggesting that a national basis would be preferable. First, it ought to lead to greater efficiency, if a way can be found of doing it without creating a wholly unnecessary bureaucracy. Secondly, it would help to create a degree of uniformity which is clearly desirable where criminal prosecutions are concerned. Thirdly, it would create a unified career structure for members of that profession, which is vitally important, if, in the future, it is to attract sufficiently suitable and able candidates. Fourthly, it may be possible to find a better solution to accountability than the one which the Philips Commission reported. If there were a nationally based structure, it would clearly be answerable to the Home Secretary or to the Attorney-General.

Therefore, I should like to ask the Minister, when he replies, first, whether the Government are persuaded by the weight of argument in the other place in November last year that it should be a nationally based structure; and, secondly, if so, whether they are also persuaded by the weight of argument in the other place that it would be desirable, in the interests of independence—or, at least, to be one step removed from Government—that it should be the Attorney-General's department rather than the Home Secretary that should have control over the system and to which it should be accountable.

All this has resource implications; practically everything one says these days in your Lordships' House has resource implications. The Royal Commission made its best estimate that it would cost about £4 million, but it may be that the Government have other views by now; and, again, it may be that, when the noble Lord replies, he will be able to bring that figure up to date, so that we can see what sort of figure it is that we are dealing with and to what extent savings in police time, savings in unnecessary prosecutions and so on can be put against that figure.

The final argument that I should bring to your Lordships' attention is one of which I know the noble Lord the Minister is aware. When the Home Affairs Committee on Police Complaints Procedures reported in another place on 26th May this year, they said in paragraph 39—and they regarded it as so important that they put it into black type, for almost the only time in their report: We support the proposals of the Royal Commission on Criminal Procedure, which were based on extensive evidence taken over a period of two years, and would wish to see the introduction by the Government of a Crown prosecutor service, both for its own sake and for the contribution it could make towards a satisfactory solution of the problems attending investigation of complaints against the police. I should like to ask the Minister whether he has any comment to make about that, and whether the Government accept the view put forward there that there is this further advantage, which I think was not considered by the Royal Commission in its time.

As I said, the Royal Commission has reported, consultations have now taken place, the Government have made it clear in a Written Answer in another place on 25th June this year that those consultations were with some 27 other bodies, the vast majority of which, although not all, approved the proposals. There were dissentient voices, and I am sorry to see that many of them were the dissentient voices of police officers. It may be that police officers have misunderstood these proposals and appear to think that they constitute some sort of attack in some way upon them, or their fairness, or their ability. Nothing, I am sure, is further from the thoughts of those of us who wish to press this proposal. We are anxious to see that the police are assisted in carrying out their duties properly, and we believe that this is a sensible and desirable way of doing so.

The Government have also made it clear that there are to be no further consultations. In other words, the time for discussion is over; the time for action has now arrived. The Government have two alternatives: either they can put the report back on the shelf or they can legislate. I should be the first to accept that putting Royal Commission reports back on shelves is not an entirely unknown activity for Governments of various political parties, but I hope we shall be able to hear from the Minister tonight that the urgency and importance to the public of this matter is such that the Government do not propose to put this report back on the shelf.

The Government have indicated that they propose to legislate at a very early moment on other parts of the Royal Commission's report—in particular, I think, on the part relating to police powers. I hope the Minister will find it possible to say tonight—although he cannot of course commit himself to the course of future legislation—that when the Government do do that, they will give very serious consideration indeed to the possibility of legislating also in order to provide a national prosecution service.

9.57 p.m.

Lord Mishcon

My Lords, a House rich in quality if poor in quantity is very much indebted to the noble Lord, Lord Wigoder, for putting down this Motion this evening so that even at this hour we can concentrate upon a most important report. I am quite sure that we all share the hope of the noble Lord that this is not one of those reports which is put into a drawer and then forgotten. The noble and learned Lord, Lord Gardiner, has certainly spoken about this matter on several occasions. When that happens there is not only a waste of the extremely valuable time given by members of Royal Commissions but, if I may introduce a sordid thought, there is a waste of money. I notice that the cost of producing this Royal Commission report, with its analyses and its findings, was over £1 million. It would therefore indeed be a waste of money, quite apart from time, of a very material nature if once again this were a report which found its way into a Government drawer and did not receive a positive response.

I wonder whether I may usefully employ the few moments during which I propose to address your Lordships by filling in some of the gaps which, of necessity, the noble Lord, Lord Wigoder, had to leave because his address to us was limited to 20 minutes. I listened to him, therefore, with some care in order to ascertain those matters in the report which I thought were vital but which he could not deal with, because of the comparative brevity of his speech. One wonders whether any system can be right in regard to justice if there is a failure to have a national pattern in order that people who have to decide whether or not to prosecute citizens should be able to administer a caution— whether the case which they have before them, with all the evidence, is deficient and therefore the time of the public, of the judiciary and of jurymen should not be wasted, quite apart from the fact of putting the citizen in peril by a charge being preferred against him.

One of the things I have learned from this report, and I believe your Lordships will be interested in this as well, were acquittal statistics based on 1978 figures—the latest year for which the commission could obtain figures. I found the acquittal statistics to be quite amazing, and so did the Royal Commission. On 1978 figures—and these statistics were borrowed from criminal statistics for England and Wales 1978 and judicial statistics for the same year—it is indicated that 47 per cent. of defendants pleading not guilty in the Crown Courts and 50 per. cent in the magistrates' courts were acquitted.

Your Lordships may think from those figures alone that they merely showed the ability of members of the legal profession to defend with great adequacy those clients whom they represented, but the figures do not finish there, and this is the material part of them. Of those acquitted in the Crown Court, 19 per cent. were ordered to be acquitted by the judge. In 24 per cent. of the acquittals, the judge directed the jury to acquit. That means that 43 per cent. of cases which resulted in acquittal in the Crown Court failed because the prosecution was not even able to adduce sufficient evidence to make out a prima facie case. It that is not an argument for saying that we have at least to give great consideration to whether or not the present prosecution system in our country is in order, then, if I may respectfully say so, I do not know what would ever convince us.

Therefore, it seems necessary that we should be looking to see whether, quite apart from the question of fairness which was so properly raised by the noble Lord, Lord Wigoder, on questions of efficiency and on questions of wastage of time—especially when our courts are crammed full of cases and some of the greatest injustices are being perpetrated by defendants having charges hanging over their heads for many months and, in some cases, for well over a year—this is not a material consideration for us to take into account.

The next point I should like to mention which the noble Lord, Lord Wigoder, did not have time to cover is this. Take it for granted, and I certainly do, that the report of the Royal Commission makes out a case for the need for a revision of the prosecution procedure by a division between those who investigate and those who decide to prosecute; there is an injustice which is being perpetrated through there not being a uniform pattern on prosecution policy and on the policy of whether or not one administers a caution. May I again quote some figures, because they are so interesting? They are to be found on page 136 of the report. Your Lordships will forgive me if I read out these very interesting figures: In 1978 the Cheshire, Cleveland, Durham, Greater Manchester, Hertfordshire, City of London, and Merseyside forces and the Metropolitan Police cautioned 2 per cent. or fewer of adults for indictable offences while Wiltshire cautioned 14 per cent., Devon and Cornwall 15 per cent. and Suffolk 22 per cent. The Leicestershire and South Wales forces cautioned 33 per cent. and 34 per cent. respectively of juveniles for indictable offences in that year, while Dorset, and Devon and Cornwall cautioned 67 per cent. and 69 per cent. respectively. These figures, showing this terrific variety of pattern, again show the necessity for some sort of uniform prosecution policy. Indeed, if one were taking this argument lightly—none of us wish to do so—it really is a question of deciding, if you are going to commit an offence and do not want to be prosecuted, in which part of the country you ought to decide to live, and certainly which part of the country you ought to take your youthful children to in case they fall into juvenile delinquency.

As I said, the hour is late, and I have picked out just a couple of points which I think your Lordships will find useful in deciding that the Royal Commission had indeed made out a case for uniformity. May I add one other consideration. I think it is terribly important that the police of our country—indeed, we have discussed this on more than one occasion in your Lordships' House—should be upon such terms with the civilian population that they continue to have, as they deserve to have, complete respect and the reputation for impartiality. When we have debated race relations in this House we have talked with some sorrow of the unfortunate relationships that have grown up in certain parts of the country where there is a substantial immigrant population and where there is a feeling, justified or not, that the police have a grudge against a certain ethnic minority. In this House we have always said that we would never want to believe that; that if there was a minority in the police force guilty of such behaviour we would want those members of the police force to be treated as though they were bringing down the reputation of a great police force in this country.

It is a fact that, if you have such varying ideas of prosecution, or caution, or where there is no case and where there is a case, if the police are both the investigating and prosecuting authority there will be the feeling that this antagonism which is suspected has been carried to the measure of a prosecution where no prosecution should be brought. But if indeed there is, be it at national level or local level, a separate prosecuting authority consisting of members of the legal profession, who will decide, at a certain stage, whether a prosecution should be continued in our courts and then conduct the prosecution, and that authority is completely different and separate from those who have investigated the crime, and indeed in most cases those who have stopped the alleged offender, then I think you will see not only that justice is done but that it is seen to be done.

So there is no doubt that there are valuable recommendations in this section of the report to which the noble Lord, Lord Wigoder, has been good enough to refer us, and I hope with him that these recommendations will find their way into some Act of Parliament. Unfortunately, they do not seem to have found their way into the Criminal Justice Bill, but the noble Lord the Minister may think that enough already has found its way into that. But if we cannot have it in that Bill I hope we will have it in the legislation to which Lord Wigoder referred by anticipation when he dealt with what the Home Secretary had said in another context. These recommendations are important, and I hope the Government give them consideration, and, as I said, that some sort of activity will result from this Report.

10.10 p.m.

Lord Wilson of Langside

My Lords, I shall say very little but I must certainly echo the words of the noble Lord, Lord Mishcon, in expressing our gratitude to the noble Lord, Lord Wigoder, for raising the questions arising on this altogether important and interesting Royal Commission report. I shall say very little particularly because, of course, in this context I speak as a foreign lawyer. Indeed, as a foreign lawyer unprompted, I should not have ventured, even briefly, to speak in the House tonight.

I observe that in paragraph 7.24 of the report there appear the following words: A centrally directed national prosecution system for England and Wales is neither desirable nor necessary". Of course, in my part of the country, prosecution is nationally and centrally directed and in the hands entirely of the Lord Advocate and his subordinate prosecutors. We regard the system there as being highly satisfactory; there is no pressure to change it. Until recently, in an unfortunate case in Glasgow, the textbooks were prone to say that private prosecution was, indeed, as dead as the hiccup. I think one can say for our system that any hiccup that there may be is due to human error rather than to any fault in the machine.

I say that only for the following reason. When I read this report my whole experience convinced me that to say that such a system was entirely inappropriate to England and Wales was absolutely right. The centrepiece on which they appeared to base that conclusion was the danger of a growth of bureaucracy in the system. In a prosecution system it is all-important, of course, to avoid that. We are able to avoid it in the northern part of the United Kingdom because we are a small, self-contained country and we all know one another. The Lord Advocate knows all the judges and he probably knows all his procurators-fiscal. It is easy to keep control over the whole operation of the system from the centre without allowing an undesirable bureaucracy to develop. I can well see that this would be a quite different problem in England and Wales.

One question that was raised by the noble Lord, Lord Wigoder, concerned the responsibility for the decision as to prosecution as between the procurator-fiscal and the police. I would not venture to suggest how this responsibility should be allocated in England and Wales, but in Scotland the responsibility is clearly upon the shoulders of the procurator-fiscal. But he works in close consultation and co-operation with the police, and the matter seems to give rise to no difficulties.

I would say, finally, for our system, that I think that our acquittal rate is somewhat lower than yours. I would not take up your Lordships' time by referring to the Scottish criminal statistics, but I think I can say that, in so far as the acquittal rate is a measure of the efficiency of the system—and it is only one—our acquittal rate is, or has been up until recently, a tolerable one.

In conclusion, I would only say this, and I said that I would say very little in part because I am a foreign lawyer. I should simply like to leave your Lordships with the impression of a foreign lawyer—who has spent most of his working life under a system of public prosecutions closely organised from the centre—reading this report dealing with your quite different system. I must say that I found it an impressively wise report, if I may say so without presumption; I hope it does not sound presumptuous of a mere foreigner to say something like this of a report of a Royal Commission. But I approached it tentatively and with a certain hesitation, and only because of the promptings of the noble Lord, Lord Wigoder. But I am glad that he prompted me and I was impressed by its wisdom. I hope that the Government will have some effective answers to the questions which have been raised in the debate tonight.

If I may say so without introducing a note of rancour in a context and at an hour when rancour is perhaps not appropriate, the system of prosecutions is, of course, an important factor in the maintenance of law and order. It is not the only factor, but it is quite an important one. From time to time, it has appeared to me that this present Government, like some of their predecessors, in relation to law and order are strong on words and not quite so effective in action. I hope that the answers of the Government to the proposals in this report will perhaps show that they are now prepared to match action to their words.

10.17 p.m.

Lord Gardiner

My Lords, I too, am grateful to the noble Lord, Lord Wigoder, for having given us the opportunity to discuss this report, or part of it, tonight. As your Lordships know, I have always felt that we treat very poorly those who serve on Royal Commissions and departmental committees. They receive no pay and the work takes up an enormous amount of their time. For the chairman, of course, it must become a full-time job for about four years. It always seems to me to be extremely discourteous if, when, as here, they have spent four years on a task like this and produced this very full report, it is not discussed in Parliament. Fortunately, I hope they will never know that we are discussing it with only one Member on the Government side of the House sitting behind the Front Bench.

I am also deeply grateful to the Royal Commission itself, for the reasons which I shall venture to give. For some 12 years, I have been intimately connected with the Justice Report on the Prosecution Process. The noble Lord, Lord Widoger, was one of the two chairmen of the committee which produced that report. I was not on the committee but I was on the council at a time when the noble Lord, Lord Shawcross, was the chairman. We were actuated in that committee principally by two things. The first was that in every country, at least in every democratic country—certainly throughout Europe—the police have two important functions. One is the prevention of crime. I am a Londoner and when I was a boy in London you never knew when you would meet the local bobby coming round the corner, and the local bobby knew his local customers. Secondly, when a crime is committed, the police have the function of trying to ascertain who has committed it.

Throughout democratic Europe it is only in England, Wales and Northern Ireland that the police have had a third function; namely, to prosecute. This happened nowhere else. In every other democratic part of Europe there has always been some form of indepen- dent prosecutor who held a fair balance between the police and the citizen. We felt that these powers, which no other police force had, put too much temptation into the hands of the police. Of course, the police have never been allowed to prosecute in Scotland. There they have always had the procurator-fiscal system.

I do not want to exaggerate things but undoubtedly there were a certain number of cases which ought never to have been brought because the evidence simply was not there. There were a certain number of cases in which police put in the "verbals"; that is, they reported the suspect as having said something that he did not. I do not doubt that most of them were cases in which the policeman honestly believed that this was the man who had committed the crime and that he was putting in something which would help, he thought, in the cause of justice. This did not happen in the country districts where people know one another. It only happened in London and large towns.

I remember a police sergeant we used to have in Birmingham. It did not matter what he interrogated anybody about, the first thing the man always said was, "I wonder who has grassed on me"? It became obvious that this could not happen in every case that he interrogated, but that was always his evidence. This became known to the Bar and, through the Bar, to the judge on the circuit, and the judge was told not to pay too much attention to it. But we felt that it was the system that exposed the police to too much temptation. We never of course foresaw for a moment that a time might come when the Commissioner of the Metropolitan Police would forceably retire 400 policemen. The word "Countryman" had never been heard of. However, we felt that there was that danger, and that was why we recommended that in future there should be a public prosecutor in a national service under the Attorney-General at the head.

A few months before the Justice report, namely in 1969, a Committee had been appointed about the police in Northern Ireland, of which the noble Lord, Lord Hunt, was chairman. Lord Hunt's committee had recommended that the police should be stopped prosecuting in Northern Ireland except in very minor cases and that Northern Ireland should have the Scottish system of the procurator-fiscal. Two years after that there was a Bill in Stormont that would have implemented the Justice system. After direct rule, the then Conservative Government introduced an order which would have applied the Justice system to Northern Ireland.

In the course of the debate the Attorney-General, the present noble and learned Lord, Lord Rawlinson, in introducing the order said: The answer to my honourable friend is that the proposals in this Order for the Director of Public Prosecutions Northern Ireland enact every one of the recommendations which were made by the Justice Committee Report on Prosecutions in England and Wales. The Committee of Justice recommended that there should be certain changes in the English system. Each of its recommendations was incorporated in the Northern Ireland Bill. When he wound up in the debate he said substantially the same, saying that what was being done was exactly the proposals made in the Justice report on the prosecution process. The introduction of that system in Northern Ireland has been a great success, and I say that for two reasons, the first because the Royal Commission in paragraph 7.14 of their report at page 148 say: Our discussions with the police in Northern Ireland and with the Director of Public Prosecutions there, who since 1972 has had responsibility for prosecutions in all indictable and serious summary offences, suggests that the system is working well and to the satisfaction of the police as well as that of other parties". Secondly, I can confirm that myself because, as chairman of the Gardiner Committee, we saw everybody concerned in Northern Ireland—in the police: the chief constable, the superintendents, the CID and Special Branch; the Chief Justice, the Director of Public Prosecutions and the Bar and Law Society—and in a country in which they are not slow to allege bias, nobody even suggested that the Director was partial to the Protestants or the Catholics, and there is no doubt therefore that the system has had a great success in being applied in Northern Ireland.

For some years I have, I am afraid, bothered the Home Office to apply the system here. Their only reason against it that I was ever given was the enormous cost. I am not particularly good at finance but I used to discuss this with the Association of Prosecuting Solicitors, who maintained that the Home Office figures were entirely wrong, that they had no basis for them at all and that they, the prosecuting solicitors, knew all about the costs because they had all their records. They maintained there would be an actual saving if you allowed for the fact that it would free a substantial number of high grade police officers who would be devoting all their time to prosecutions. So although there would be a number of assistant prosecutors to pay, there would be that saving and, on balance, they thought there would be a credit balance and not a debit balance.

It all ended with a deputation which I took to the Home Office. Mr. Danks, the Secretary of the Association of Prosecuting Solicitors came with me, and finally the Home Office had to agree that they had no real basis for their own figures or for challenging Mr. Danks' figures. In 1977 various things happened. The Labour Party Conference had a resolution down about the Justice Report on the Prosecution Process. This was remitted to the National Executive Committee, which accepted it, so it became Labour Party policy. In the same year, I was pleased to read in The Times that the policy committee of the Liberal Party had accepted the Justice Report on the Prosecution Process.

This report is, of course, not the Justice proposals at all. What is being proposed by the Royal Commission is a purely local police body. When I say "police body", it is not designed to divide the country into local authority areas or anything of that sort. It would be divided into police districts, and in each police district there would be what the Royal Commission call a police and prosecution authority. As I understand it, the police will decide all the preliminary points, whereas under the Justice system, the Director or Assistant Director will decide whether or not there is to be a prosecution.

Under the Royal Commission's proposals, the people who will decide whether or not there is to be a prosecution are the police; the people who will decide who is to be prosecuted are the police; and the people who will decide what the charges are to be, which is also important, are the police. In that queer authority according to the Royal Commission's report, the prosecutor and the chief constable would be of the same status. How that would actually work out in practice, I cannot really see. Therefore I would strongly support the plea that the noble Lord, Lord Wigoder, has made, that it should be a national service under the Attorney-General, and not a system under which the police would decide everything that mattered, and only then would it go to someone of equivalent status to the chief constable.

There is one odd thing that I did not understand about the report. The noble Lord, Lord Elton, is always so obliging, and if he can help on this point, I am sure that he will. What I cannot understand is as follows. It was always at the substance of the Justice report that we were very peculiar in that, alone among all the democratic European countries, we gave the police a right to prosecute. One would have expected that there would have been done some research work into how all the prosecuting systems in Europe worked out. A paper describing the German system was published; that is the only one. I was interested in what my noble friend Lord Mishcon said about the German system, because the Justice report published two appendices, one describing the German system, the other describing a system in the Netherlands. But of course Justice has no means with which to do a proper research survey, and I confess to being disappointed that the Royal Commission did not do such a survey, either.

I remember the Justice description of the German system. What surprised me most—the figures bear some resemblance to those quoted by my noble friend Lord Mishcon—was that the public prosecutor prosecuted in only fewer than half of the cases that the police sent him. On the other hand, when he did prosecute, the conviction rate was 90 per cent. So under the German system they did not get the type of case in which now the judge has to direct the jury that they must acquit, because it is really a case which should not have been brought.

What surprises me is that the Royal Commission makes no reference at all—except that in a research paper, not in the main body of the report, there is the reference to the German system—to anything that happens in any European democratic country. I cannot think of a reason for that, since the point was the whole basis of the Justice report. At one time I thought that I knew what was the reason. I thought that the commission must have considered that while the Justice system might work in a small country, it could not work in a large country such as England and Wales. And what about Germany, what about France, what about Italy?—all three of which have bigger populations than England and Wales. So that could not have been the reason.

Then I considered that perhaps the commission thought in that most of the European democratic countries there is not the kind of prosecutions which we have, an accusatorial system. I thought that the commission's reasoning might have been based on the fact that those countries did not have the accusatorial system. But the commission could not have thought that because Scotland has our system, Northern Ireland has our system. So that could not have been the reason. I was completedly "fogged", and if the noble Lord can tell us why he thinks that in the report—which took four years to prepare, and which in a sense was started by the Justice Report on the Prosecution Process—there is no reference to what happens in any European democratic country, I should be very grateful.

Lastly, as the noble Lord, Lord Wigoder, stated, the matter was discussed in the other place on 20th November, and I was very interested to see that members of all parties seemed strongly to support the service being a national one, and not a local one as proposed by the Royal Commission. I was particularly interested to see that the honourable Member for Bury St. Edmunds, Mr. Griffiths, speaking, he said, on behalf of the Police Federation, said that the Police Federation themselves would prefer a national system. He was also strongly supported by the chairman of a body called the All-Party Penal Affairs Group, of which the noble Lord, Lord Elton, may have heard and of which I am but a humble and very insignificant member.

So I would welcome any information that the Minister can give us as to what the Government's intentions are; and for the reasons I have ventured to give I hope very much that, whatever they do, they will give us a national service under the Attorney-General and not this curious local police authority suggested by the Royal Commission.

10.36 p.m.

Lord Hutchinson of Lullington

My Lords, so far as the criminal process in this country is concerned, this report of the Royal Commission is probably the most important document that has emerged since the war. It is a great pity, therefore, that the first time that this matter has been debated in your Lordships' House should be at such a late hour at the fag-end of the Session and in an almost empty Chamber. I think it is a pity, also, that we are debating this part of the report, separated from the rest of it. Nevertheless, I, too, am grateful to my noble friend Lord Wigoder for introducing this debate, even if it is a hurried and inadequate one.

Speaking for myself, I find Part II of this report one of the very best sections of it. It deals with the crucial matter of the prosecution system; and the decisions that the Government ultimately take upon it will have the most far-reaching influence on the integrity and efficiency of criminal trials in the next two or three decades. All the weaknesses of the present system are excellently set out in the report, and, basically, what they really amount to is (is it not?) that at the moment there is no system.

Anyone can prosecute for most offences in this country, and yet there are a hundred statutes which require the Attorney-General or the Director of Public Prosecutions either to conduct the prosecution or to give their consent to a prosecution being brought. A quarter of all prosecutions, apart from motoring offences, are in fact instigated by other agencies than the police—the Inland Revenue, the DHSS, British Transport, Customs and Excise and so on. And, of course, whether one is prosecuted in this country will very often depend at the moment on the moral attitude of the particular chief constable in the district.

I suggest that these matters are surely clear. First, that a prosecutor must be a totally independent and detached individual, and, as the report suggests, could properly be called the Crown prosecutor. He must work in harmony with the local chief constable, but at arm's length. He must run his own department and be accountable in some reasonably democratic manner. He must be efficient; and his main task must be to see that only properly selected, prepared and presented cases come before the courts. Furthermore, there must be separation between the investigation and the conduct of the case. I would add to those propositions, more controversially, that there must be the abolition of the private prosecution by the individual citizen, and that most prosecutions by other agencies should either be taken over by the Crown prosecutor or supervised by him.

That leaves, of course, three vital questions. Can there be separation between investigation and the decision to prosecute, about which we have heard a lot this evening? Should the system be local or national; and can there and should there be consistency of policy throughout the country? Speaking for myself, I find myself still ambivalent, really, on those three vital questions, and I certainly came here to take part in this debate, more to listen than to pronounce. I sincerely hope that the Secretary of State will do as he has so admirably done in relation to the future of the Judges' Rules: be able in this case to produce proposals, as he has done in those matters, for general public discussion before coming to a final decision on this absolutely crucial question.

My own personal inclination is to lean towards the conclusions of this report under all three heads. I would suggest, as the commission suggests, that it is really too impractical to dissociate in all cases the conduct of the investigation from the decision to prosecute. The critical decisions bringing the accused person into the system really have to be (do they not?) made by the police in a vast number of cases. I would say with the greatest respect, as the noble Lord, Lord Mishcon, and the noble and learned Lord, Lord Gardiner, have said, that it is easy to say that there should be a division; but is it really practical in the circumstances of immediate arrest or in relation to offences where bail is not going to be granted and in an innumerable number of unimportant and less serious cases, for one to have this strict division between the investigation and the decision to prosecute? Interestingly, the Royal Commission found on a careful inquiry that the procurator-fiscal in Scotland—and I now obviously speak with the greatest of respect to my noble and foreign friend on my right—in many cases, indeed in the majority of cases, simply acted as a rubber stamp to decisions which had already been made by the police. Furthermore, they found, going over to the United States, that the district attorney carried out a very substantial amount of investigation with his own staff into white-collar crime.

So those interesting results emerged from this report but neither of them, in fact, are examples which prove that separation would be practicable in this country. If the Crown prosecutor is really independent—appointed, as I would suggest, certainly in the same way as Crown Court judges are appointed; not, of course, by the noble and learned Lord the Lord Chancellor, but, in my view, by the Attorney-General—if he is given status and salary equivalent, say, to a Crown Court judge, if he is then made responsible for the conduct of all prosecutions, surely then he will see to it by a correct procedure of checks and balances that unsupportable charges or summonses do not come before the courts. That is a very crucial and important matter.

The relationship between the Crown prosecutor and the Attorney-General would then be very similar to that between the Director of Public Prosecutions and the Attorney-General at the moment. The Crown prosecutors would function really as local Directors of Public Prosecution and, indeed, the Director's department could be made responsible for the staffing and standards of prosecution departments across the country. My own inclination in the matter of administration of justice leans towards a local rather than national basis. I am supported in that inclination by experience of what has happened since the Beeching Report, in which so much of the advantages that came from local administration of justice have been abolished. One's experience of the whole of the administration of the Crown Courts being put into the hands of the noble and learned Lord the Lord Chancellor's Office—certainly speaking for myself—can hardly be described as any great success.

It is important that the administration of justice should be, so far as possible, part of local life; that the local considerations must affect prosecution policy. We surely cannot have a policy which can go right across the board. There are always bound to be reasons for prosecuting certain kinds of offences in one part of the country which would not be appropriate in certain other parts of the country. I suggest that local considerations are of the greatest possible importance. Local interest and local understanding and local participation in the administration of justice are very important. Guidelines and influence from the centre, yes. Certainly my inclination would be against directives.

So far as accountability is concerned, what the report describes as explanatory accountability, again, in spite of what the noble and learned Lord, Lord Gardiner, described as this "queer authority", the prosecution and police authority, I would incline to some authority of that sort with the chief constable and Crown prosecutor working to the same body but with responsibilities clearly defined; then the Crown prosecutors policy being open to question in Parliament of course through the Attorney-General, as the policy of the Director of Public Prosecutions now is. A London-based national prosecuting authority, though having, I see, the advantages of consistency of policy and independence of local pressures, and the other advantages which my noble friend Lord Wigoder has pointed out, I would still agree with this report, would become bureaucratic; that there would be elaborate reporting systems going through the hierarchy back to the Minister, and there would indeed be, as the report says, strong forces at work to further the interests at the centre rather than the local interests.

With those observations, obviously one has left a great many difficulties in the air, particularly the special case of what authority there should be in London. One cannot help wondering whether the undoubted degree of corruption which there has been in the Metropolitan Police, and which has been quite clear to many of those who have practised in London courts for many years—and now everybody has become aware of it—may not be due in some part to the fact that that police force has not been subject to any real democratic authority but has of course been responsible directly to the Home Secretary.

The whole question that we are discussing tonight is bound up with the possibility of the formation ultimately of a Ministry of Justice and the removal from the Home Office of the responsibility for many other facets of the administration of the criminal law. That raises far larger questions which I, for one, sincerely hope we shall be able to debate on another day.

10.50 p.m.

Lord Elton

My Lords, the Report of the Royal Commission on Criminal Procedure was published in January of last year. The Question tabled by the noble Lord, Lord Wigoder, provides a timely and welcome opportunity for Her Majesty's Government to respond to the recommendations made in the second part of that report and I am grateful to him, too, for giving occasion for the interesting contributions of the five other noble Lords who have spoken in the debate.

Your Lordships will recall that in the autumn of last year the Home Office issued a consultative memorandum in which were outlined a number of questions. The questions were those on which Ministers were anxious to know the opinion of interested bodies and, indeed, the general public as a whole.

Among these were a number of questions relating specifically to prosecution arrangements: both questions of principle about the need for alteration in the present system, and practical questions about the organisation, financing and control of any new arrangements. In a debate on the Royal Commission's report on 20th November last in another place, my right honourable friend the Home Secretary indicated that the Government were giving careful thought to these questions and would take full account of the views expressed on them in Parliament and elsewhere. This we have now done, and I am able today to tell your Lordships the result.

Noble Lords will recall that the Royal Commission found the existing prosecution arrangements in England and Wales to be deficient in respect of fairness, openness, accountability and efficiency. Those, as the noble Lord, Lord Wigoder, said, are important matters; and the statistics referred to by the noble Lord, Lord Mishcon, in his lucid speech—I had marked my text in the same place as he had marked his—served to heighten their importance. The commission considered whether the right course would be to set up an independent prosecution service organised on a national basis, on the lines of the procurator fiscal service in Scotland. It was interesting to hear the argument tossed to and fro between the Benches on the other side of the House as to whether this was a good thing or not.

The Royal Commission rejected this option because they believed that, if that system were applied in England and Wales, the much larger scale would result in an organisation that was altogether too bureaucratic and top-heavy. Their preference was that the arrangements should continue to be locally based, and they recommended that statutory provision should be made for the appointment of a Crown prosecutor for each police area. The Crown prosecutor's functions were to be, first, the conduct of all criminal cases once the decision to initiate proceedings had been taken by the police; with that went discretion to alter or drop charges. The second function was the provision of legal advice to the police on prosecution matters. The third was the provision of advocates in the magistrates' court (to the exclusion of the police) and the briefing of counsel in the Crown Court where appropriate.

The noble Lord, Lord Wigoder, kindly gave me notice of several questions he intended to raise, and he will be interested to know that research initiated by the Royal Commission indicated that about 500 police officers would be released for other duties if police officers ceased to conduct prosecutions in magistrates' courts. That, I do not doubt, will strike a sympathetic and nostalgic chord in the mind of the noble and learned Lord, Lord Gardiner, who, as he told us, suggested just as much some years ago.

The Crown prosecutor would, in respect of resources and efficiency, be accountable to a "police and prosecutions authority" which would be an expansion of the existing police authority. They thought that at national level the Attorney-General should have responsibility for prosecution policy, and that he or the Home Secretary should have responsibilities with regard to the administration and finance of the prosecution service similar to those which the Home Secretary has in relation to the police. The Crown prosecutor would prosecute cases brought by "private" police forces, but Government departments and other public agencies which now carry through their own prosecutions would continue to do so. If the Crown prosecutor refused to take up a case brought to him by a private citizen, the latter would be able to apply to a magistrates' court for leave to institute proceedings himself; if leave were granted, the cost of the prosecution would be borne by public funds. Those, in general terms, were the conclusions of the report.

The Government recognise that there is a strong case, in principle, for establishing a prosecution service independent of the police in some form. At the same time—and this is a very familiar theme—we have to bear in mind the need to contain public expenditure and public service manpower; we have to ensure that any changes made or planned keep within the limits of available resources. I am echoing a phrase of the noble Lord, Lord Wigoder, in his compellingly interesting opening speech. Furthermore, we do share the reservations which have been widely expressed about the Royal Commission's proposals on how such a service should be organised and controlled. Those reservations are implicit in the noble Lord's Question itself.

These proposals of the Royal Commission envisaged that a Crown prosecutor for each police area should be appointed, subject to central Government approval by a local supervisory authority, and that he should be accountable to that authority not only on administrative matters but also, in what the Royal Commission called an "explanatory" mode, for his general policy. The debate in another place on 20th November elicited no support whatever for this feature of the Royal Commission's proposals; and, indeed, we share the misgivings that appear to be widely felt about whether these proposals would be workable, and about the effect which they might have on the independence of prosecutors decisions.

However, if there are defects in the Royal Commission's scheme, that does not mean that there is some alternative scheme ready to hand which is free of all imperfections. For the noble Lord, Lord Wigoder, the obvious alternative to the Royal Commission's scheme is a national system. But that, in turn, raises a quite different set of problems, on which I shall elaborate in a moment, and these have not yet received the study that they require. The Royal Commission certainly did not examine the implications of a national system in any detail—understandably enough, since they believed that they had devised a different and better scheme. So I suggest to noble Lords that we have not yet reached a point at which we can take a decision about the form that an independent prosecution service, if we established one, should take.

At present, the conduct of public prosecutions in England and Wales is divided between, first, the Director of Public Prosecutions, dealing with the smallest but most important number of cases; secondly, 43 chief officers of police—I confirm the number—of whom 33 have the assistance of prosecuting solicitors' departments; and, thirdly, a varied assortment of Government departments, local authorities and other public bodies. If the chief officers of police no longer have the final say in the conduct of police prosecutions, who is to take their place for this purpose? We could hardly have two separate national prosecution agencies, one consisting of the DPP's department, as now constituted, and the other comprising a new and entirely separate corps of Crown prosecutors.

And here we have a problem, because to combine the two would make the Director responsible for all prosecutions, regardless of their importance. This would mean a dramatic change in the nature of the Director's office and an equally dramatic change in the size and organisation of the department. There would be implications, too, for the nature and extent of the Law Officers' accountability to Parliament for prosecution decisions. Nor can we entirely discount the Royal Commission's fears that the resulting structure would become top-heavy. As the noble and learned Lord, Lord Scarman, put it in his letter in The Times on 14th July: there are dangers—those of an extra wheel to the administrative coach resulting in delay, expense, bureaucratisation. For these reasons it would, in the Government's opinion, be unwise to dismiss altogether the concept of a prosecution system organised on a local basis. There may be alternatives to the Royal Commission's scheme which would avoid the dangers both of over-centralisation and of the kind of local accountability which the commission proposed.

The noble Lord referred in his opening to the general colour of the advice which we received in response to our consultation memorandum, and, in particular, to the summary list of those who made representations, which my honourable and learned friend published in reply to a Question by the honourable Member for Hazel Grove in another place. I can confirm that the overwhelming majority of commentators favoured an independent prosecution service, but that there was no very clear consensus on whether it should be on a national or on a local footing.

However, I have not come to the House this evening merely to explain how difficult all this is. The Government have a clear responsibility to find and to recommend to Parliament what we consider to be the best practical solution to these difficulties. But first there does need to be further analysis and study of the problems I have outlined. The time, in the phrase of the noble Lord, Lord Wigoder, for consultation, therefore, is not past because this ought to be conducted not solely within the Whitehall machine but in consultation with representatives of the bodies which have an interest in the subject, including the prosecuting solicitors now in office, the legal profession as a whole, the local authorities and the police. For this purpose the Government propose to reappoint the working party on prosecution arrangements which last year carried out a preliminary assessment for Ministers of Part II of the Royal Commission's report. This is a working party of officials under Home Office chairmanship, comprising also representatives of the Lord Chancellor's and Law Officers' departments, and including the Director of Public Prosecutions.

Given that the Government do not find the Royal Commission's proposals acceptable as they stand, the working party's task now will be to advise Ministers on what would be the best model for the organisation of an independent prosecution service on some other basis, what problems would arise and how best they could be solved, and what the resource implications would be. They would not be limited to considering organisation on a national basis but would be able also to examine local, regional and, indeed, other possible forms. After carrying out the wide-ranging consultations I have mentioned, they might wish to present Ministers with a set of options, indicating the implications and the advantages or disadvantages of each.

Our exact destination is not clear, and that is why we have decided to reconstitute the working party to obtain further advice. But certain things have been made clear to us about our destination by the report of the Royal Commission and we intend to take three steps in that direction in the light of that report. The commission itself saw transition to an independent prosecution service as a gradual process, and the taking of these interim steps is entirely appropriate to that approach.

First, my right honourable and learned friend the Attorney-General proposes to give to all who prosecute on behalf of the public some guidance on criteria for prosecution which will be closely in accordance with the spirit of the Royal Commission's recommendations. We in the Home Office will bring this guidance to the attention of chief officers of police. Secondly, the Director of Public Prosecutions will, with the approval of my right honourable and learned friend the Attorney-General ask the chief officers of police to consult him in every case in which the chief officer wishes to continue criminal proceedings, contrary to the advice of the solicitor having the conduct of the proceedings. Thirdly, we shall maintain the policy of favouring the establishment of prosecuting solicitors' departments and the Home Office will proceed to draw up models for the organisation of prosectuing solicitors' departments with a view to promoting efficiency and cost effectiveness.

Interim measures on these lines will be taken after consultation with interested bodies outside Whitehall and will be supplemented by research aimed at updating the information obtained by the Royal Commission about the working of the existing arrangements. That information will of course, I can assure the noble Lord, Lord Wigoder, include information on the resource implications of anything that may be proposed.

A number of your Lordships asked questions which I shall attempt now to reply to. With regard to the question about the Home Affairs Committee report, the noble Lord was interested in the correlation of policy on police complaints with that on the independent prosecution system. My right honourable friend the Home Secretary has made it clear that the Government still have the recommendation in the Home Affairs Committee's report under consideration and that our conclusions will be announced as soon as practicable. He has also said that he intends to bring forward proposals for legislation. To what extent an independent prosecution service can assume responsibility for police complaints depends on, among other things, the model finally adopted. We cannot therefore judge at present how far the committee's long-term aim is attainable until we see what emerges from the steps I have just announced. The committee's recommendations for reform in the meantime relate specifically to complaints procedures and not to prosecution arrangements generally.

The noble Lord, Lord Mishcon, inquired on the subject of cautioning. My right honourable friend accepts the case for reducing the wide variations to which the noble Lord referred in his statistical review, where this is possible. The Home Office has held discussions with chief officers to that end. As a first step, a research programme is being mounted which will draw on the results of a current survey of present practice. But, in the context of this debate, I would say in reply to the noble Lord's question that the Royal Commission placed importance on the police continuing to have discretion to prosecute. I hope that your Lordships accept that the measures being undertaken by the Government in the context of cautioning provide the best way forward in the direction which the Royal Commission recommends on that subject.

This debate has performed one of the important functions of both Houses of Parliament; and that is the edification of the Minister. If I have not referred specifically to interventions by your Lordships, it is through no lack of regard for what has been said. Indeed, I have not referred specifically to the noble and learned Lord, Lord Wilson of Langside, or to the noble Lord, Lord Hutchinson of Lullington, but in fact much of what they have said has been echoed in my own speech.

I heard with very great interest the noble and learned Lord, Lord Wilson of Langside, warning us against the central system and finishing up by recommending ambivalence to the Government. There was considerable interest, too, in the general approval expressed by several noble Lords of the separation of the functions of investigation and prosecution. That is, on present balance, our own view—but, in the context of police complaints, it is possible to advance another view with some considerable persuasion. I should not like to give the impression that we have come to a final view on this. So we do occupy the ambivalent position of the noble and learned Lord in that respect.

The noble and learned Lord, Lord Gardiner, asked an interesting question about the researches of the commission and the reason for the way in which they were planned. I cannot speak for the commission but the one crumb of information I can give him is that, although I know it is true that the Royal Commission did not itself research into prosecution systems in other European countries, members of the commission in fact visited Denmark, the Netherlands and Sweden, but not—interestingly enough—Germany, to study at first hand their prosecution systems.

I hope that this summary of where the Government now stand on Part II of the Royal Commission's report, and of the further study and action we are putting in hand, has been helpful to the noble Lord, Lord Wigoder, and to the House as a whole. Clearly, we are not in a position to give a date for future legislation on the main issue, but I have already announced interim measures, and we shall keep Parliament informed of further developments in the months to come. Everything that the noble Lord, Lord Wigoder, has said—I have an awful feeling he is going to say, "Before the noble Lord sits down", and I am going to sit down very quickly—has resource implications, including keeping your Lordships' House sitting at a late hour.

Lord Wigoder

My Lords, all I was going to say before the noble Lord sat down after that most helpful and constructive speech was this: Could he assure us that the working party will be reappointed in the near future and instructed to treat their task as one of urgency?

Lord Hutchinson of Lullington

My Lords—

Lord Denham

Order!

Lord Elton

I think, my Lords, that although the noble Lord, Lord Wigoder, asked a question, I can stretch the rules of order to the extent of giving a monosyllabic reply, which is what I would have done; the answer to his question is, yes.