Leading Article: Populism is no way to reform the prosecution service

ONCE UPON a time - not so long ago in the case of some societies - crime and punishment was not carried out by judges or rulers, but by the community. Witches were burned, false accusations were made, and interest groups swayed opinions. But at least the community felt that justice was theirs, not an abstract principle imposed by men with whom they felt little affinity and whose logic often seemed the opposite of common sense.

Presumably it is this warm glow of social approval that David Calvert- Smith, the Director of Public Prosecutions, seeks in his plans for new guidelines, as reported by The Independent today. The "public should own the system", he declares, suggesting that the rules for embarking on prosecutions should be changed. Instead of the DPP deciding whether a prosecution has a "realistic prospect" of conviction, as at present, the prosecution would be brought when there seems a basic case to answer.

Sounds sensible enough. The public does get irritated by the apparent reluctance of the Crown to go after obvious suspects in a case such as that of Stephen Lawrence or to bring prosecutions in crimes such as car theft, which may not seem important to the DPP, given the cost of trials, but do exercise the public at large.

But then the Lawrence case, which appears to have been the immediate catalyst for Mr Calvert-Smith's urge to reform, is actually a reason for supporting the present rules. The problem there lay not in the DPP's reluctance to prosecute but in the failure of the police to get any real evidence. Had the suspects been brought to trial and the case dismissed for lack of evidence, would the public's appetite for "justice" been satisfied any better?

At the end of the promised consultation period, Mr Calvert-Smith may be forced to limit the changes. The Government (although not always Jack Straw, the Home Secretary) is sensitive to charges of leaning too far to the right in legal reform. But coming on top of the Government's efforts to make the feelings of victims part of the process of punishment, to reduce the discretion of judges and magistrates in sentencing and to toughen punishment in response to public disquiet, it is hard not to see a process of populism at work.

Child maintenance cases are not being pursued in court because of the costs, but the weight of work on an overstretched system will be added to in this instance. We want the victims' rights brought into play but feel distinctly unhappy when a 90-year-old driver guilty of causing accidental death is committed to prison.

The focus group may be an attractive place for politicians to deposit the law, as they have so much else, but it is a dangerously fluid foundation on which to establish legal practice.