Leading Article: The CPS must bear the blame

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IN THE aftermath of the bungled Rachel Nickell murder case, two connected questions hang in the air. The most serious is over the competence of the Crown Prosecution Service. The second concerns the police's use of morally questionable undercover methods to seek confessions. It was the CPS's mistaken decision to prosecute on the basis of information thus obtained that led to this legal debacle.

The Police and Criminal Evidence Act 1984 (Pace) was introduced to prevent miscarriages of justice resulting from confessions wrongfully obtained. Although Pace tacitly admitted that covert operations could be used to obtain evidence, it strictly limited their use. Much was left to the judge's discretion. In a recent comparable case, the judge ruled that nothing should be done that denied the defendant's basic right not to incriminate him or herself. In the Nickell case, there was no such cautioning, and pressures of the most unscrupulous variety - such as an implicit offer of sexual fulfilment - were used to tempt a confession out of Colin Stagg. Even so, and on four separate occasions, Mr Stagg said he had not killed Rachel Nickell. It is bad enough that innocent people should be prosecuted on the basis of confessions falsely obtained. In this instance there was not even a confession, only circumstantial evidence.

The blame for pressing ahead with a prosecution lies squarely with the CPS and its director, Barbara Mills. Some sympathy is in order. Like social workers, the CPS is regularly accused of doing either too much or too little, of dropping too many cases, or (as in this instance) prosecuting without adequate evidence.

Like the police, it comes under tremendous pressure from politicians and the press to deliver results in high profile murder cases. In its defence it points out that it acted throughout on the advice of senior Treasury counsel. Those same independent, outside lawyers, along with Gordon Etherington, the CPS's own chief crown prosecutor for London, advised on the decision to prosecute.

Their decision is impossible to reconcile with Mr Justice Ognall's description of ruses used by the police to obtain evidence as 'wholly irresponsible' and 'a blatant attempt to incriminate a suspect by positive and deceptive conduct of the grossest kind'.

It is easy enough to understand the kind of group psychology that leads a police team - in this case guided by an experienced forensic psychologist - to believe it has got the right man. The role of the CPS is to stand back and assess the strengths and weaknesses of the police case. This it failed to do.

The CPS cannot seek to justify its conduct without seeming to question the judge's rulings. But at the very least an internal inquiry must establish what went wrong and determine how a repetition might be avoided. The police for their part must reassess their use of undercover methods not merely to identify and arrest a suspect, but to justify a prosecution.