The “Public Interest” Criterion in the Decision to Prosecute
| Date | 01 November 1989 |
| Published date | 01 November 1989 |
| Author | Roger K Daw |
| DOI | 10.1177/002201838905300408 |
| Subject Matter | Article |
THE
"PUBLIC
INTEREST"
CRITERION
IN
THE
DECISION
TO
PROSECUTE
Roger K Daw*
Introduction
For
a
branch
of
the
law which the ordinary
member
of
the
public
might wish to consider
certain,
the
criminal law offers aplethora
of discretion which would possibly frighten any individual who
comes across it.
It
is a widely held misconception
that
aperson
who is identified as having
committed
acriminal offence should
be,
and
indeed
is,
taken
to
court,
prosecuted
and punished.
Further,
it is
thought
that
when
one
is dealing with issues affecting
the
liberty of
the
subject,
the
accused should be aware at
the
first
available
opportunity
of
what he is facing
either
in terms
01
substantive law
or
sentence.
To
explain to such a
person
the
various
options
available to
the
police, prosecuting authorities and
the
sentencing tribunal is to invite acharge of uncertainty which
would be well-founded.
However,
if a
moment's
thought
were to be given to
the
way in
which
the
criminal justice system is obliged to
operate,
then
il
should
not
come
as
too
much
of
ashock to those outside its portals
to see
the
potential value of having a
degree
of
discretion within
the
system to allow
the
interests of justice to triumph
over
the
purely legalistic
enforcement
of
abody of rules.
The
exercise ot
discretion within
the
system starts from
the
moment
of contact
between
the
representative
of
the
enforcing authority and the
potential offender.
It
manifests itself in
the
fact
that
apolicemar
may decide to warn
rather
than
report
an individual for a
bread
•Barrister; Gwilym Gibbon Fellow, Nuffield College, Oxford, 1987/88;membei
of the Policy and Information Division of the Crown Prosecution Service based ai
CPS Headquarters in Queen Anne's Gate, London SWI. The views expressed ir
this article are personal reflections on the public interest criterion in prosecutior
and nothing in the text should be taken as a statement of formal CPS policy.
485
Journal
of
Criminal Law
of the criminal law; in the fact that an individual may be cautioned
for an offence which, had it been committed in another - and
possibly indeed neighbouring -part of the country, would have
led to a charge and possibly an appearance in court!
The exercise of discretion within the system is not confined to
the police; the so-called "plea bargain'? aterm used in this context
to reflect those cases in which the prosecution choose not to
proceed with
part
or all of an indictment in the light of sentences
handed down in relation to
other
counts or different indictments
is another example of the exercise of a discretion which the
outsider may view with some concern.
There are, of course, sound reasons why such discretions exist
in the field of criminal law and their defence is not a subject for
this article, save to say that a rigid system of law enforcement at
all levels has never been encouraged or indeed requested by those
authorities charged with the implementation of the law. Given the
fact that areas of discretion already exist within the system, it is
little wonder, with the coming of the Crown Prosecution Service
(CPS), that such a discretion was embodied within the Service's
terms of reference.
Whilst
other
areas of discretion may have been permitted
and to some extent condoned because their development and
implementation has been achieved without the need for formal
Parliamentary recognition," with the establishment of the CPS, it
became necessary formally to admit that not every case for which
there issufficient evidence to proceed to trial need be so concluded.
1The latest set of criminal statistics (for 1987) produced by the Home Office
discloses a substantial degree of divergence between constabularies as to the nature
and volume of offences cautioned, ranging from a 4% cautioning rate for males
over 21 in Staffordshire to a 23% rate in Humberside and a 10% cautioning rate
for females over 21 in Cumbriato 51% for the same category in Wiltshire. Neither
must it be forgotten that formal cautioning by the police takes place on a very
large scale; in 1987, nearly 150,000 offenders who admitted committing indictable
offences were cautioned. These offences ranged from attempted murder through
rape to petty theft.
2Of course, the use of plea bargaining, in the sense of a guilty plea to an offence
which
mayor
may not appear on the indictment in return for an "understanding"
with regard to sentence, has been deprecated by the courts since the paradigm
case of R. v. Turner (1970) 54 Cr.App.R. 352, though there have been some very
peculiar obita dicta from the Court of Appeal in this area: R. v. Grice (1978) 66
Cr.App.R. 167.
3Despite its implied recognition now, one can search in vain for the authority
under which the police caution an individual rather than take him be.forea court.
486
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