Review of Prosecutions Conducted by the
Solicitors Office of HM Customs and Excise
The North Eastern Circuits Response to the letter
of 30th June 2000 from His Honour Judge John Gower QC
Experiences, as one might expect, varied but there were some consistent themes which emerged. I outline these before turning to the particular questions raised by your review.
- Customs and Excise investigating officers, administrators and Solicitors have specialist knowledge and expertise which it is vital to retain, and indeed to strengthen.
- Generally speaking, and particularly in the more serious and complex cases, there was uniformity that Solicitors, investigators and administrators were competent and professional. Indeed, the quality of the investigator in particular was often found to be far higher that his counterpart in a Crown Prosecution Service prosecution.
- Serious practical problems were encountered from time to time because of lack of sufficient staff in the Solicitors offices, the fact that they were based in Lancashire, that their resources were stretched beyond breaking point, and that they were not able to provide the degree of assistance and support to Counsel in some cases that the investigation clearly warranted.
- The present system, particularly in complex and serious cases, is capable of working well and has done so in a number of high profile cases on Circuit.
- This is not to say that improvements cannot, and should not, be made.
- By reason of the fact of lack of sufficient C & E lawyers, some Counsel who prosecute not infrequently, had never met a Solicitor from those offices. They dealt often directly with investigators who it was felt at times did not have the support of the C & E Solicitors that they required.
- Whilst C & E Solicitors maintained a proper distance from the investigating functions involved in a prosecution, the prominent role played by the investigators was, at times, not adequately supervised. Certainly in some of the less complex cases there appeared to be little or no immediate scrutiny of the investigator's decisions in relation to primary and secondary disclosure and matters of P.I.I.
- The problem of resources could be eased by, of course, the employment of rather more C & E Solicitors with more local bases than they currently have, or, possibly, the provision of direct access to members of the Bar properly trained to undertake such work.
- The overriding theme expressed was that many of the problems that Counsel had encountered would have been overcome by a significant increase of staff in the C & E Solicitors offices.
- Few saw any advantage in transferring the prosecution of C & E crime to the Crown Prosecution Service or any other body. The problems within the Crown Prosecution Service were considered to be far greater than those within the C & E organisation.
- Whilst recognising that there had been concerns expressed elsewhere that the Solicitors were not sufficiently independent from the investigators, this was not a concern shared by those who prosecute on Circuit.
THE PRESENT SYSTEM What is your experience of the efficiency or otherwise of the present system As one might expect, Counsels' experience varied greatly from case to case. In general however, and in the more serious and complex cases where no doubt resources are concentrated, Counsel felt they had been well supported by C & E "in-house" lawyers. In other cases, however, there was a general complaint that the lawyers were happy to leave the responsibility for much of the conduct of the preparation to the investigators and that Counsel found it difficult to contact C & E lawyers when such was necessary. The general complaint in such cases was that the C & E lawyers seemed remote and that there was a danger that the investigating officer was often working without the support or scrutiny of the C & E lawyer. (b) What problems (if any) are presented by the present "tripartite" arrangement?
No particular problems were highlighted by those whose views were canvassed provided the proper division of functions was maintained. This may be because Counsel have little experience of the administrators and were therefore more confident in commenting upon other questions posed. RELATIONSHIP BETWEEN INVESTIGATOR AND SOLICITOR
How widely should the Philips principle be applied?
There was unanimity of views that there must be a proper
division of functions between the prosecutor and the investigative body. It was
recognised that the role of the investigator, often because of the lack of
support from the C & E staff, is a very much more prominent one, not only
during the preparation for trial, but also during trial than is the case with
conventional Crown Prosecution Service proceedings. There was a danger expressed
that by reason of the lack of scrutiny of their work at times because of the
under-staffing at the C & E offices, that they may blur their function with
those of the prosecutor, but in general the calibre of the investigating
officers was such that it was felt that this presented a small risk. The
division of functions was felt to be observed and to be working well in general
in most of the cases on Circuit. There was a concern expressed however that, by
reason of the limited number of lawyers available, at times work is done by the
investigators at pre-trial hearings which should more properly be dealt with by
either C & E lawyers or Junior Counsel. In general, it was felt that the C
& E Solicitors maintain a proper and professional distance from the
investigation of offences. Indeed, as outlined earlier, they may maintain too
great a distance in some instances from the work of the investigating officers.
In practical terms how should it apply to C & E prosecutions?
If another agency were to be responsible for some or all C & E prosecutions what could be done to ensure (a) that investigators continued to have access to specialist legal advice and (b) that arrangements for liaison between investigators and the agency's lawyers were adequate to prevent muddle and crossed wires? If any agency were to be responsible there would have to be an increase in the number of Solicitors with the skill and expertise currently held by C & E Solicitors or direct access would have to be allowed to the Bar to provide the required speedy advice. Provided that specialist lawyers were assigned to particular individual cases, there would seem to be little danger of muddle or crossed wires provided there were sufficient numbers of them. AN EXISTING PROSECUTING AUTHORITY OR SOME OTHER BODY
What case can be made for or against transferring the whole or part of the C
& E prosecuting role to the Crown Prosecution Service or the Serious Fraud
Office?
A minority view expressed was that the transfer of their work
to the Crown Prosecution Service would enable the standardisation of approach to
prosecuting cases that would be to the public good and that the Crown
Prosecution Service would be more likely to use greater numbers at the Bar so
that there may be increased choice of Counsel, and an increase in specialist
available advice. The majority view was that no case could be made for
transferring any part to either the Crown Prosecution Service or the Serious
Fraud Office. In particular it was felt that any dilution of expertise and skill
within a larger organisation would create more problems than it would solve.
Prosecuting international crime is a specialist subject requiring specialist
skills. The Crown Prosecution Service is overworked, its bureaucratic procedures
would make for a much more inefficient process and morale is not reported to be
high. They also suffer, it is said, from substantial under-funding, overwork and
stress. The key to the prosecution of such offences appears to be one of
resources.
If transfer were made to the Crown Prosecution Service, would a specialist unit
need to be established to deal with the major cases?
What case can be made for establishing a new agency to conduct either all or only serious and complex prosecutions?
There seems to be no reason why a new agency should be established unless the old was considered so tarnished by recent events. On this Circuit that does not seem to be the case. The overwhelming view was that in neither category of cases would there be any advantage to a new agency being set up.
DECISIONS ON WHETHER OR NOT TO PROSECUTE Should administrators decide in individual cases whether to prosecute ? It was the overwhelming view expressed that decisions to prosecute should be taken by lawyers in consultation with administrators and investigating officers when required. It was the experience in general of Counsel on Circuit that very few, if any, cases had been brought when it was not appropriate to do so. Proper decisions appear to have been made as to whether a prosecution should have been brought. If there was a danger expressed it was that (as with the police and the Crown Prosecution Service) there may be a tendency to be excessively cautious rather than to proceed when they should not.
Who should take such decisions if the prosecuting role is transferred to another authority? The decision to prosecute should in all cases be taken by lawyers in consultation with the investigating officer and any supervisory staff.
PUBLIC INTEREST IMMUNITY APPLICATIONS What is your experience of particular P.I.I. problems arising in C & E cases? In general the experience on Circuit was that Customs Officers are much more open about the material they hold and should disclose than is the case with Disclosure Officers within the police. In some instances however problems had been experienced with P.I.I. and the interpretation placed upon such issues by different investigating officers. In general however it was thought that investigating officers were ready to take legal advice on P.I.I. issues and were prepared to accept such advice when given. In the very nature of the crimes they are investigating it is recognised that P.I.I. issues are likely to arise even more frequently than they do in the normal run of criminal case. Notwithstanding this, and that much of course depended upon the experience and training of a particular investigating officer (and there were it seems complaints of lack of consistency and uniform approach to P.I.I. issues expressed by some Counsel), it was felt by and large that investigating officers were rather more reliable than their counterparts within the Police Force. I hope the above is of some assistance. Whilst at times it seems to represent a plea for more work for the Bar, it is not intended as such at all. What has clearly emerged is that, with the increasing abuse of drugs and the enormous profits to be gained by those who manufacture, produce, supply, distribute and import drugs, the work of the prosecuting authorities and investigation into such activities requires a degree of specialist training and skill that, in turn, demands proper funding. Without such funding, shortcuts inevitably will be taken in the investigation and prosecution of such offences with calamitous results. The system currently operating has been proved on occasions on Circuit to be capable of, and indeed to have, worked very well indeed. Whatever changes are made must retain the strengths of the current system and strengthen them where necessary. ANDREW CAMPBELL QC
26th July 2000
