Investigators and Prosecutors or, Desperately Seeking Scotland: Re‐formulation of the ‘Philips Principle’
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00580.x |
| Published date | 01 March 2006 |
| Author | Robin M. White |
| Date | 01 March 2006 |
THE
MODERN LAW REVIEW
Volume 69 March 2006 No 2
Investigators and Prosecutors or, Desperately Seeking
Scotland: Re-formulation of the ‘Philips Principle’
Rob i n M. W h it e
n
Prosecution in England and Wales, traditionally private, was captured by the ‘newpolice’, creat-
ing an ‘English tradition’unl ike those of the rest of the United Kingdom. To overcome conse-
quent problems, the Royal Commission on Criminal Procedure recommended the ‘Philips
principle’, whereby investigator and prosecutor were separate, but co-ordinate, on which basis
the Crown Prosecution Service was set up. However, the principle was in fact compromised by
the ‘English tradition’, most obviously by permitting continued police prosecution. Moreover,
the Serious Fraud O⁄ce, set up shortlythereafter, contradicted the principle.Yet, HM Customs
and Excise addressed its serious problems byapplying the principle. The CPSits elfe ncountered
di⁄culties £owing from the compromises. Reports (Runciman, Narey, Glidewell) recom-
mended various devices,straini ng the principle,until the Auld Report recognised that reformu-
lation was necessary, along the lines adopted elsewhere in the United Kingdom, that is, by
recognising that there should be investigator subordinationto prosecutor.
INTRODUCTION
The United Kingdom is remarkable in being a unitary
1
state withthree legal sys-
tems, thusthree criminal laws, andthree prosecution systems. Anyone of these is
better understood in the light of the others.
In England andWales, the Report of the Royal Commission on Criminal Pro-
cedure (‘Philips’)
2
twenty-¢ve years ago, produced what is conveniently called the
n
Senior Lecturer, Departmentof Law, Universityof Du ndee.My thanks are due to the Leverhulme
Trustfor a Fellowship which enabled me tou ndertakerese archof which thi s article is one product, and
to Sir Alasdair Fraser (DPPNI); Tricia Howes (SFO); John Jackson (Queen’s University, Belfast);
Johanna Keenan (University of Ulster);Walter Merricks (Financial Ombudsman a nd member of both
Philips and Roskill); Garry Patten (CPS); and MatthewWagsta¡ (CEPO/RCPO)for helpful conver-
sations and comment on drafts.An e arlier version appearedas a Du ndee Law Department sta¡ semi-
nar, and I am grateful for the comments received from colleagues, in particular to Pamela Ferguson,
Mark Mackarel, Colin Reidand Ian Willock forcomment on drafts. None of these is responsible for
what has emerged.
1 There is no devolutionto England and Wales, and the state remains far from federal.
2RoyalCommissionon CriminalProcedure,Report,Cmnd 8092 (1981)(Philips).The ¢rst halfconcerned
police powers,and resulted in the Police and Criminal EvidenceAct 1984.The second co ncerned
prosecution and resulted in the Prosecution of O¡ences Act 1985. See alsoThe Investigation and
Prosecution of CriminalO¡ences in Englandand Wales:TheLaw and ProcedureCmnd 8092^I (1981) and
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(2006) 69(2) MLR 143^182
‘Philips principle’, that is, the principle that investigation and prosecution
are separate function s, and the latter is not subordi nate to the former, but co-
ordinate with it. This principle was a reaction to the inadequacies of the earlier
English tradition of police prosecution, and generated the Crown Prosecution
Service (‘CPS’). The principle was not fully clari¢ed by Philips, however, and
emerged compromised by that tradition. Since then, the experiences of the Ser-
ious Fraud O⁄ce (‘SFO’), HM Customs and Excise (‘HMCE/RCPO’),
3
the
CPS itself, and now the Serious and Organised Crime Agency (‘SOCA’), have
clari¢ed it and made manifest the compromises, and radical re-formulation is tak-
ing place, drawing on Scottish and Northern Ireland practice. A fresh look at the
principle is thu s required, informed by an intra-United Ki ngdom comparative
perspective.
SETTING THE SCENE
Scotland
Comparison commences with Scotland, as it has a straightforward public prose-
cution system. This comprises the Crown O⁄ce and Procurator Fiscal Service
(‘COPFS’), headed by the Lord Advocate.
4
It is broad spectrum, in that COPFS
has, to all intents and purposes, a monopolyof initiating and carrying out all pro-
secutions including, for example, those investigated by the SFO and HMCE/
RCPO. It is also centralised as there is but one COPFS; it sets out guidelines on
all prosecution policy; and where trial is to be by solemn procedure (ie before a
jury), the local procurator ¢scal sends the‘precognition’ (ie the case ¢le) to Crown
O⁄ce for¢nal preparation and approval byone of the Advocates Depute(known
as ‘Crown Counsel’, and deputising for the Lord Advocate on a part-time four
year appointment). Further, it is old, in that current arrangements are the latest
manifestation of some three hundred years of the Lord Advocate’s monopoly of
K.W.Lidstone, R. Hogg and F. Sutcli¡e, Prosecutions by Private Individuals and Non-Police Agencies
(Lidstone et al), M. Weatheritt and J. MacNaughton, A Survey of Prosecuting Solicitors’Departments
and D.R. Kayeet al,Organisational Implications of Change(Royal Commission on Criminal Proce-
dure Research Studies Nos10,11and 12 (London: HMSO,1980) respectively);also HomeO⁄ce,
Evidence tothe Royal Commission on Criminal Procedure: MemorandumNoVIII:The Prosecution Process
(London: HMSO, 1978) (Home O⁄ce Evidence).
3 HMCE is now merged with Inland Revenue(IR) toform HM Revenue and Customs (HMRC),
but with prosecutions carried out by the new ‘Revenue and Customs Prosecution O⁄ce’
(RCPO).
4 For a standard account, seeA.V.Sheehan et al,Cr iminal Proc edure (Edinburgh and London: Butter-
worths, 2nd ed, 2003) (Sheehan et al), especially paras 26^42: also Lord Normand,‘The Public
Prosecutor in Scotland’(1938)54 LQR 345; G.H. Gordon,‘The Institution of Criminal Proceed-
ings in S cotland’ (1968) 19 NILQ 249; S. R. Moody and J.Tombs, Prosecution in the Public Interest
(Edinburgh: Scottish AcademicPress, 1982) (Moodyand Tombs); and most recently Review of the
Planning, Allocation and Managementof Resourcesin the CrownO⁄ce and ProcuratorFiscal Service(Price/
Dyer) (2002), Ch 1 and Annex C (available at http://www.copfs.gov.uk/Resource/Doc/13421/
0000061.pdf, last visited17 November2005), and the more critical Report of an Inquiry into Crown
Decision-making in the Case ofthe Murder of Surjit Singh Chhokar (the Campbell Report) (2001) SP
Paper 425 (available at http://www.scottish.parliament.uk/business/committees/historic/equal/
2001.htm,last visited17 November2005).
Re-formulationof the‘Philips Principle’
14 4 rThe Modern LawReview Limited 2006
prosecution in the High Court of Justiciaryand the ProcuratorFiscal’s in the Sher-
i¡ (and now District) Courts. Private prosecution has been almost unknown for
centuries.
What is particularly noteworthy is that it is a system in which investigator is,
in an important sense, subordinate to prosecutor. Because it pre-dated the rise
of t he ‘new police’,
5
no question of the pol ice initiati ng or carrying out prosecu-
tions arose.
6
Indeed, since as an inevitable consequence of the responsibility for
prosecution, the procurator ¢scalalso had responsibility for investigation, the role
of the police has been simply to carry out such investigation, under speci¢c
instruction if necessary,and to report to the ¢scal.Further, to prepare a precogni-
tion, the ¢scal takes his or her own statements (confusingly also called‘precogni-
tions’) from all witnesses, including the police. And as ‘master of the instance’,
the procurator ¢scal or advocate-depute has always decided, on his or her
own authority (subject to limited exceptions and now within Crown O⁄ce
guidelines):
when and against whom to launch a prosecution, and upon what charges . . . in
which court they shall be prosecuted . . . [and] what pleas of guilty he will accept
and it is for him to decide when to withdraw or abandon proceedings.
7
At the riskof simpli¢cation, it can be said that the investigator is the prosecutor’s
agent.
Thus, a constable’s duty arises, inter alia:
where an o¡ence has been committed . . . to . . . make such reportsto the appropri-
ate prosecutor, as may be necessary for the purpose of bringing the o¡ender with all
speed to justice.
8
Further:
. . . in relation to the investigation of o¡ences, the chief constable shall comply with
all lawful instructions as he may receivefrom the appropriate prosecutor.
9
5 ie,‘the police’as currently understood, usually regarded as emerging in the nineteenth century,in
contrast to earlier arrangements:see eg R. Reiner, Politics ofthe Police (Oxford:Oxford University
Press, 3
rd
ed, 2000) 19^20 (Reiner). Most discussion concerns England and Wales, but see eg
K. Carson and H. Idzikowska, ‘The Social Production of Scottish Policing1795^1900’ (Carson
and Idzikowska) in D. Hay and F. G. Snyder (eds), Policing and Prosecution in Britain 1750^1850
(Oxford:Clarendon Press, 1989)(Hay and Snyder).
6 The history of this relationship has been less well-researched than in England andWales. How-
ever, see eg Carson and Idzikowska; also L. Farmer, Criminal Law,Tradition and the Legal Order:
Crimeand the Genius of ScotsLaw,1747to the Present(Cambridge: Cambridge UniversityPress,1997).
7Boyle vHMA1976 JC 32, per Lord Cameron at 37.The exceptions, which must be tried by the
High Court, are the‘pleas of the Crown’, now considered to include treason, murder, rape and
breach of duty by magistrates, together with a few statutoryexceptions such as certain contra-
ventions of the O⁄cial Secrets Act 1911or the Geneva Conventions Act 1957: see eg Sheehan et
al, paras16,67, 71and 76.Crown O⁄ce guidelines are, as yet, unpublished.
9 P(S)A 67, s 17(3) proviso.
Robin M.White
145rThe Modern LawReview Limited 2006
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