All Change

AuthorDavid Kirk
Publication Date01 June 2008
DOI10.1350/jcla.2008.72.3.490
Date01 June 2008
SubjectOpinion
OPINION
All Change
David Kirk*
Director, Fraud Prosecution Service
In 1996 Lord Taylor CJ famously said: ‘In the last three years, almost
everything has been changed or thrown overboard in the criminal
justice system. When you are going to legislate, you should do it less
hectically’. He was talking of course of the legislative activities of the last
Conservative administration. His words fell on deaf ears, and the pace of
legislation has, if anything, increased since 1996 under the current
Labour government.
When I returned to prosecuting in 2006, 20 years after I had left the
old Office of the Director of Public Prosecutions, I experienced at first
hand the extent of the changes that had taken place in the criminal
justice system since 1985, and in particular the effect these changes had
had on the duties of the prosecutor. Prosecuting, it quickly became clear,
was a much more complex process than it had been in what I fondly
thought of as the Good Old Days. However, in becoming more complex,
I wondered, has the quality of criminal justice in England and Wales
improved?
My departure from the DPP in 1985 coincided almost exactly with a
massive shake-up of the prosecuting system brought about by setting up
the Crown Prosecution Service and the Serious Fraud Office. Prior to
1986, most prosecutions had been conducted by the police in what were
still then called ‘police courts’. Cases of any seriousness were handled by
local prosecuting solicitors, employed by the local authority, and having
a solicitor/client relationship with the police. The most serious cases
went to the DPP, who had the power to tell the police what to do. This
typically British constitutional muddle worked reasonably well, but just
occasionally a case came along that rocked the boat. One such case was
that of Maxwell Confait, a homosexual transvestite who was found dead
in a burnt-out house in Catford in April 1972. Three teenagers originally
convicted of his murder were released following a second appeal in
1975. Lord Scarman heavily criticised the police investigation and the
operation of the Judges’ Rules. As a result of the Confait case, these
Rules came under scrutiny in the Philips Report,1and were replaced by
the sweeping changes introduced by the Police and Criminal Evidence
Act 1984.
The creation of the CPS was seen by Lord Philips as an essential
balance to the powers given to the police in PACE, and had as its
cornerstone the premise that it was essential to separate investigative
* The views expressed in this article are those of the author and do not necessarily
reflect the views of the Crown Prosecution Service or the Journal of Criminal Law.
1 The Philips Report of the Royal Commission on Criminal Procedure, Cmnd 8092
(HMSO: 1981).
179The Journal of Criminal Law (2008) 72 JCL 179–182
doi:1350/jcla.2008.72.3.490

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