I was brought to blogging by a shocking piece of Labour legislation, but I am coming around to the view that the worst legal "reform" of my life was carried out under a Conservative government. In 1986, the Crown Prosecution Service opened for business. Before then, the police officers who investigated cases prosecuted them (or employed lawyers to do it for them). This was thought somehow to be a conflict of interest, but in an adversarial system, conflict is part of the process. It made a lot of sense for the accuser to face the accused, with an independent judge deciding between them. However, in the 1980's this was thought insufficiently "modern" and the CPS was formed
At the time, reflecting on what kind of fellow-lawyers might opt for a career with the CPS, I simply thought it was a shame that the best legal talent would no longer be available to the police. I was not wrong. When my wife served on a jury, she noticed that - though the cheap local defence barrister was hopeless - the Crown Prosecutor was worse. Like many others at the time, however, I entirely missed the truly important point. I would like to think the government of the day did too.
Under the current administration, there have been numerous incidents that should have led to prosecutions, but didn't. Does anyone doubt that Yates of the Yard would have prosecuted Lord Levy and Tony Blair in the affair of cash for peerages, for example? Would there have been prosecutions for the undoubted frauds perpetrated by numerous Members of Parliament in relation to their parliamentary expense claims? It is hard to avoid the suspicion that the CPS takes orders from its political masters; the Director of Public Prosecutions (currently Kier Starmer QC) reporting to the Attorney General (currently the Baroness Scotland).
Nor did the CPS acquit itself with honour in the case of Jean Charles de Menezes. Had you or I killed him on that tube train in the mistaken belief that he might otherwise detonate a "suicide bomb", we would have faced a jury. If the jury believed our explanation, we would have been acquitted. There is no question, however, that the police or the CPS would just say "fair enough" to our story themselves. Particularly if the CCTV records of the incident had mysteriously disappeared, apparently because you or I had removed and "lost" them. Particularly if we had lied about the incident and defamed the dead man in the days following. However, that wasn't how it worked for the officers of the Metropolitan Police who killed Jean Charles or their bosses who ordered them to do it. In consequence, the bereaved family feels cheated and the thinking fraction of the population feels suspicious that something was covered up.
It is hard to avoid the suspicion that senior police officers, the Home Secretary and the Prime Minister did not want the legality of the "Kratos" shoot-to-kill orders issued in the wake of 7/7 tested in court. I believe the then Prime Minister, Home Secretary and Metropolitan Police Commissioner have cases to answer for Jean Charles' death because they gave illegal orders to kill. With the CPS under political direction, those cases will never come to trial, unless the family brings (as I believe it should) a private prosecution. Of course, the previous system would have been only a little better. With the Met's own officers involved, an inspector from another police force would have investigated the matter and it would have been his decision whether or not to prosecute. Whether he would have acted with integrity or covered up for his colleagues would at least have been out of political control.
I think the CPS was created out of a sincere desire to professionalise the administration of justice. In yet another example of the law of unintended consequences, however, it has made justice - whenever the men of power are involved - far less likely. As we must fear the men of power more, it has made us less free.
