NOTE ON CK’S COMMENTS ON DRAFT ENFORCEMENT
AND PROSECUTION POLICY DOCUMENT v.1.0
I have been through CK's comments and their suggested revisions
and insertions.
My second draft version (v.2.0), which accompanies this note, has
been drafted in light of my consideration of their comments. I have
highlighted in Yell6W where I have agreed or part agreed with their
comments and made revisions for ease of consideration.
I deal first with their general overview comments before coming to any
revisions.
General Overview
In general terms, I have sought to draft a policy which is less
mechanistic but more “real world” as we had discussed and agreed
with Chris Aujard and others in the conference on 25 April. Some of
Ck’s views and suggested revisions risk a return to the document they
drafted. In my view, my draft serves three purposes: (1) in relatively
simply language it informs members of the public how POL will
conduct itself; (2) it incorporates by express reference the Full Code
test and other guidance documents very familiar to prosecutors, which
more than adequately provide a_ structure underlying ordinary
prosecutorial decision making; and (3) it incorporates particular
provisions customised towards POL’s business and prosecution
strategy.
While I agree with CK about, and have always been alive to, the
possibility of judicial review, typically this arises in situations where a
prosecuting authority declines to prosecute. It is then that a
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complainant (usually a victim) claims that the prosecuting authority
has acted outwith its policy or unreasonably.
While POL offences are not victimless crimes, it is POL who is almost
always the usual ultimate loser, whereas the customer who for
instance has been defrauded will I imagine be compensated by POL.
Therefore there is far less scope for judicial review of a non-decision in
POL cases. It is for this reason that I am not as concerned as CK
appears to be from paras 1 to 6 of their comments document.
I disagree with CK that the policy document might found an abuse of
the process, as appears suggested in their para 1. Abuse of process is
an exceptional jurisdiction and can only lead to a stay if (1) the
defendant cannot have a fair trial or (2) it is unfair to try him. The latter
situation (unfair to try) might arise e.g. where a promise not to
prosecute has been given by the prosecution but the defendant is
later prosecuted or where there has been some serious misconduct by
the prosecutor as a result of which the defendant has acted to his
detriment.
It is very hard to see how a rationally made decision to prosecute
could ever be the subject of a stay of proceedings based on grounds
that it is unfair to try the defendant, and I fail to see how the terms of a
policy document could ever form a ground that the defendant could
not have a fair trial.
Once a decision to prosecute is made, and the case is going through
the Crown Court, then the case is not amenable to judicial review. Any
conviction might be the subject of appeal but the decision to
prosecute based on POL’s policy could never realistically form
grounds of appeal against conviction. CK’s concerns are in my view
overstated.
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10.
11.
12.
13.
CK are absolutely right at para 5: I deliberately sought to ensure that
the document gave POL a wide ambit of discretion for reasons we had
discussed. In fact, the wider the ambit of discretion the less
opportunity there is for review unless the decision may be shown to be
unreasonable or irrational.
I have a little difficulty understanding what CK are driving at in para 6
where they comment, “We recognise that the intention here ... outside
of this policy document ... the subject of challenge”. If what they are
saying is that a wide discretion means that factors which are not
written into policy, and are therefore invisible, may be included in the
decision making process, I disagree. If the decision is fully reasoned
and recorded, and the record retained, then the decision is entirely
open to later analysis and challenge.
In paras 7-9, CK critique the interplay between the enforcement
options available to POL. I acknowledge that there is bound to be a
tension between taking informal action and formal criminal
enforcement, and that informality may prejudice the criminal process.
But this is not a matter to be written into this policy document. Rather
it is for POL to consider how it is to identify cases, which should go
down the informal/civil route as against the criminal. What I have done
is to write into the policy document in section 4 (which I have further
clarified in v.2.0) how the choice of enforcement option is likely to be
made.
At para 9, CK advocate “... a mechanism for the early identification of
potential criminal cases and their consequent withdrawal from the
policy’s civil enforcement process”. For my part, I think it would be
quite impossible to cater for every situation and eventuality in this
regard. The key is, I suspect, speedy identification of cases to
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14.
15.
16.
17.
18.
undergo criminal process so that a case that ends up in the criminal
courts is not prejudiced by an early informal approach that was
wrongly decided by the investigators or lawyers.
If despite my pessimism POL feels that something can and should be
written into the policy document then I would be glad to do so, but I
will need the investigation and legal department first to consider and
then formulate policy regarding the interplay between criminal and
non-criminal action, based on POL’s processes, which I can then
draft.
I note that CK has recently advised on “Material breach of contract
approach” which touches on the topic. I do not have this and if it is felt
it would assist me in further drafting the document, then I would be
grateful for a copy.
I do agree that a passage dealing with recording and retention of
material is not unhelpful and so have included one at new para 8.5.
Para 10. I did include reference to the Attorney General’s Guidelines
on the acceptance of pleas at para 6.3 of v.1.0, which covers much if
not all of the ground CK have suggested I insert as new para 7.6. In
light of this, a new para 7.6 is in my view otiose.
Revisions
Section 4
I do not see the need for the suggested revision in title but what I have
done is to change the section title to “Available Enforcement Options”
to provide a little more clarity. I have amended the contents page
accordingly.
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19.
20.
21.
22.
23.
24.
Paras 4.2 — 4.4. Here I have revised the paragraphs to take account of
CK’s comment on the question of seriousness. I have accordingly also
somewhat amended para 4.2, and have revised the introduction to 4.3
as well as split the original paragraph to provide a revised 4.3 and a
new 4.4 in order to separate out those factors that seem to me to go
to the issue of seriousness (4.3) and those that do not (4.4) to make
better sense of it.
In para 4.5 I have replaced the word “inappropriate” with “inadequate”
which I agree is a happier term consistent with what CK suggested for
para 7.1.1, which I have also revised.
Section 5
Para 5.4. I have removed the words “either to act as a deterrent or to
punish for criminal misconduct” for simplicity sake.
Section 7
Para 7.1.1. See above.
I have inserted a new para 7.5 adapted from CK’s suggested
paragraph because of which I have made some consequential
amendments to 7.2.
As I have indicated above, I do not think CK’s suggested para 7.6 is at
all necessary.
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Section &
25. I agree with CK about this and have added a new para 8.5 adapted
from their suggested insertion.
Miscellany
26. In my email of 20 May attaching the first draft I set out some
explanations and queried certain things. Before I am asked to
conclude the document (if I am) it would be helpful to have
confirmation of the matters I queried in the second part of the email.
Brian Altman QC
2 Bedford Row
London WC1
11 July 2014