A Welsh Justice System IX: Access to Justice & Independence

The police usually have 24 hours (sometimes longer depending on the seriousness of the crime) from arresting a suspect to either charge them or release them on bail. If released on bail, in most cases the suspect has 28 days to be charged – though since the introduction of “release under investigation” (RUI) this has become more open-ended.

The role of the public prosecutor in the criminal justice system is to:

• Decide if a suspect being detained by the police or released on bail/under investigation should be charged.
• Provide legal advice to the police during an investigation and review cases.
• Determine what criminal charges a suspect faces.
• Prepared cases for court, including support for prosecution witnesses and victims (where applicable) as well as appeals.
• Provide any relevant evidence they or the police have collected to the defence, including that which may prove the accused’s innocence (known as disclosure) to guarantee a fair trial.
• Play a part in drafting sentencing guidelines (Part XI).
• Represent foreign states in extradition hearings (Part XI).

The Crown Prosecution Service (CPS)

At present, the public prosecutor in England and Wales is the Crown Prosecution Service (CPS), headed by the Director of Public Prosecutions based in London. The Director of Public Prosecutions is appointed by the UK Attorney General.

The CPS is divided into 13 Areas, to which Cymru/Wales (in its entirety) is one as well as the out-of-hours CPS Direct service. Each CPS Area is run by a Chief Crown Prosecutor.

In 2020-21, the CPS has a net expenditure of £22.2million in Wales⁵ and employed around 280 people, with three main offices in Cardiff, Swansea and Mold. Adding a proportional share of centrally-managed costs (~£5.7million) takes the annual CPS budget in Wales up to around £28million.

The CPS Cymru/Wales area includes an executive team, a magistrates court unit (dealing with lesser offences) and a crown court unit (dealing with more serious offences).

Local Scrutiny & Involvement Panels work with the CPS to determine if their decisions are in the community’s best interests. Also, victims have a right to request a review of CPS decisions not to prosecute a case – the most high-profile recent example in Wales being the death of Christopher Kapessa (Part III).

Some of the issues around the CPS found by the Thomas Commission include a 16% real term cut to the CPS budget (leading to a fall in the number of cases being prosecuted) and the quality and effectiveness of the review system (particularly in rape cases)⁶.

Public prosecutors in other jurisdictions

Regardless of what type of legal system an independent Wales adopts (Part IVa), by and large public prosecutors in all jurisdictions are specialised offices. Prosecutors usually have the right to practice law (in Wales that would mean as a qualified solicitor or barrister – Part II).

The majority of prosecutors are appointed by the government, though there are exceptions – notably the United States where many district/state attorneys (the equivalent of public prosecutors) are directly elected.

In Australia and New Zealand, public prosecutors dealing with lower-level criminal cases may be employed by police forces, with only the most serious cases going to a senior government-appointed prosecutor.

In Scotland – which has a mixed legal system – eleven geographically-based procurators fiscal act as public prosecutors and have a much broader role than the CPS do in Wales,  taking on some investigative powers normally reserved to coroners. The most serious crimes are prosecuted in the name of the Lord Advocate (the Scottish equivalent of the Attorney General).

The level of independence public prosecutors have from the government varies. In most cases (including the CPS), public prosecutors are considered part of the civil service or equal in standing and independence to judges. While the Attorney General of England and Wales has political accountability for the public prosecutor, they’re not directly involved in decisions.

Options for Wales

Some things needn’t change that much:

• The overall role of the public prosecutor could remain the same.
• The qualifications to become a prosecutor could remain the same too – a qualified solicitor or barrister.
• A ballpark annual budget of around £30million to maintain current service levels.
• A mix of central offices and distant working (CPS Direct prosecutors usually work from home on-call).
• A right to review prosecutor decisions.
• A cross-community civilian panel to review the public prosecutor’s work and to highlight possible biases.

In terms of changes, an independent Wales could consider:

• Jurisdiction – Wales could maintain a single national public prosecution service. The other option is to appoint a single head prosecutor to each judicial district (Part XII) or police force area (Part VI) with only the most serious cases being passed up the chain. We could also follow Scotland and merge the role of coroner with public prosecutors.
  
• Appointment or election? – As mentioned, most of the time public prosecutors are appointed, but we could go down the American route and elect prosecutors; though that would come with an additional expense and would (on paper) likely mean “tough on crime” party-linked populists would have an advantage over more impartial, level-headed candidates.
• The name, which would be partially dependent on whether Wales becomes a republic or not – The default in a constitutional monarchy is “Crown Prosecutor” and “Crown Prosecution Service”. Other alternatives include “Public Prosecutor”, “State Prosecutor” and “District Attorney”.

5: Crown Prosecution Service, (July 2021). Annual Report and Accounts 2020-21, p115. Available at: https://www.cps.gov.uk/sites/default/files/documents/publications/CPS-Annual-Report-and-Accounts-2020-21.pdf

6: Commission on Justice in Wales, (October 2019). Justice in Wales for the People of Wales, p188-191. Available at: https://gov.wales/sites/default/files/publications/2019-10/Justice%20Commission%20ENG%20DIGITAL_2.pdf