Andreas Whittam Smith: CPS: a criminal injustice

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The Independent Online

The Crown Prosecution Service (CPS) has been getting embarrassing headlines. Its task is to decide whether there is both sufficient evidence and public interest in bringing a person suspected of committing a crime before the courts. It often uses one of its own lawyers to conduct the case. However, three recent incidents raise the question of whether it is working badly. If so, then it would have to be categorised with the police service, where there is widespread dissatisfaction with performance, with the prison service, some of whose establishments have become schools for criminals, and with the probation service, which is under-resourced. It would also raise the possibility that no part of our system of justice is working well.

In each example it was a woman who felt let down by the CPS. Susannah Marmot is a mother-of-four whose husband runs a small business. Last October in Edgware, north London, one of Mrs Marmot's children rolled a ball into a neighbour's garden. Mrs Marmot went to collect it and found herself involved in a violent – literally violent – argument with the dustman living there. Now according to what neighbours told the court, Mrs Marmot is a "very calm, very intelligent lady". Another said she "always kept her cool". The dustman, on the other hand, had been involved in disputes with neighbours over a 10-year period. Nonetheless, it was Mrs Marmot who was charged with assault.

"Diya" is in her 30s. She ended a brief relationship, but the man began to make a nuisance of himself and was charged with assault and harassment. Bravely Diya prepared to go to court to give evidence. She asked if she could testify from behind a screen but was told the measure had not been requested in time. "This left me shocked and in panic," she told the BBC. She wanted the case to go ahead anyway, but as she approached the courtroom, she saw the defendant thanking his defence team and walking free. She then learned that the CPS lawyer had offered no evidence and the defendant had been acquitted. "I begged for someone to tell me what was going on. I demanded answers from the prosecutor but he did not reply," she said. "I was in despair."

"Josephine" is in her 20s. She alleged that a man had seriously sexually assaulted her. The police investigated the complaint and the CPS approved the bringing of a case. Josephine asked to give evidence from behind a screen but the request was not granted. In the witness box Josephine inadvertently referred to the man's criminal history. The trial was immediately halted and the defendant dismissed. Alison Saunders, head of the CPS in London, said: "I would like to offer my apologies to the complainant in this case."

In the event, Susannah Marmot was acquitted after only 30 minutes of jury deliberation. The judge, Recorder Rosamund Horwood-Smart, said of the CPS: "They failed lamentably to address the questions raised on the face of the papers and failed to address the particular issues of the circumstances of this case." She ordered the CPS to pay the £14,600 defence costs. The question is, however: why did the CPS push on even though two different judges had urged that the case should be reviewed with a view to discontinuing it?

In the "Diya" situation, a lawyer who happened to be present told the BBC. "There was no sign of the witness coming into court... No one went outside to check why the witness had not come into court... The prosecutor then told the court that in the circumstances he had no alternative but to offer no evidence in the case." In other words, had the prosecutor been a bit more patient the case could have continued. For "Josephine's" mistake, there was also a clear remedy. The case should have been retried with a new jury.

Two hypotheses can be advanced to explain the CPS's failings. First, it relies upon inexperienced prosecutors. Pushing ahead with a case such as Mrs Marmot's in the face of a rising tide of implausibility is inexperience. Not knowing how to deal with "Diya's" lack of a protective screen is inexperience. Not understanding that a retrial is the remedy when a witness inadvertently breaks a rule of evidence is inexperience. This is reinforced by internal systems that stifle initiative. The CPS has tied itself in knots, as bureaucracies tend to do, and quite unexpectedly, next week's public spending review may loosen things up. Let us hope it has the same effect on the police, the prisons and the probation service.

a.whittamsmith@independent.co.uk

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