Prominent amongst the achievements of the current government has been the establishment of a battalion of ministerial taskforces. We now have the culture renewal taskforce, the waste taskforce, the infrastructure delivery taskforce, the libraries taskforce, the university research and knowledge exchange sustainability taskforce and the roadmap taskforce (whose onerous task it is to coordinate no fewer than five sub-taskforces).
First among equals of all of these is the criminal justice taskforce, established with the explicit purpose of restoring the Conservative Party’s reputation as the party of law and order. Chaired by the Prime Minister, members are reported to include Priti Patel, Robert Buckland and what is described as a ‘rolling membership’ of other senior ministers. The intent, it was said when the taskforce was set up in January, is to bring about ‘a return to clarity’ on criminal justice policy.
Little was heard from it until Sunday, when it was reported that it intended to reverse the decline in rape prosecutions by imposing targets on the police and the CPS to prosecute and bring more rape cases to trial.
This return to clarity on criminal justice policy was further clarified on Monday by a Downing Street spokesman who said that the taskforce was not planning to reverse the decline in rape prosecutions by imposing targets on police or prosecutors.
The clarification is welcome since not only would the imposition of a Downing Street target almost certainly be unlawful – under the Prosecution of Offences Act 1985 responsibility for initiating prosecutions and issuing guidance to prosecutors is given to the Director of Public Prosecutions (DPP), not to a government taskforce – it would also have marked an extraordinary executive power-grab. Prosecutors act in the name of the Queen, but their decisions are independent of government.
The prosecution of rape suspects is a particularly sensitive political issue. At present, in theory at least, the test for bringing a rape prosecution is the same as in any other case. No prosecution can be started unless there is a ‘reasonable prospect of conviction.’
It is true that there is also a ‘public interest’ test. Prosecutors often consider any prosecution to be in the public interest, but it is highly unusual for a prosecutor to decline to prosecute a rape on public interest grounds. In any case, the public interest test acts only as a potential brake on a prosecution, not as a spur to action. Prosecutions are never brought ‘in the public interest’ if prosecutors do not believe that the evidential test is met. As the CPS puts it in its guidance to prosecutors:
“‘If the case does not pass the evidential stage, it must not go ahead, no matter how important or serious it may be.’
The imposition of a government target would change that entirely. For a target to have any meaning prosecutors would have to take it into account in deciding whether to prosecute. Suspects who would not currently be prosecuted because of a paucity of evidence would need to be prosecuted to meet the target.
Prosecutors refusing to comply with the new policy would have to be disciplined. It is inconceivable that Max Hill QC, the current DPP could have remained in post under such a regime and his replacement would have to come from that section of the legal community consisting of invertebrates willing to subordinate their independent judgement and their self-respect for career advancement.
The Crown Prosecution Service is not without its faults. Its allegedly over-cautious prosecution policy is currently being challenged – and vigorously defended – in a judicial review brought by the End Violence Against Women Coalition. Others might think that a more cautious policy towards rape prosecutions is a welcome corrective after a series of disastrous and well-publicised prosecutions of innocent men in recent years. But whatever problems the CPS may have, turning the Director of Public Prosecutions into the Prime Minister’s poodle would be a dreadful solution.