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This chapter considers the advances in public prosecution in England and Wales over the quarter century since the establishment of the Crown Prosecution Service (CPS). The CPS was initially granted a limited scope of authority in the face of self-interested resistance by the police and private bar. But over the past decade or so, the CPS has taken on additional functions and powers, including the exclusive authority over charging. Among other things, the CPS has sought to improve the treatment of witnesses; reached interagency agreements on the forfeiture of criminal assets; coordinated the decision making among government agencies with concurrent enforcement jurisdiction; increased efforts in cases of sexual and domestic violence; and developed community prosecutors to interact with local citizens to address problems within their neighborhoods. Moreover, the CPS is gaining more control over all criminal proceedings, with CPS Crown Advocates now presenting some cases in the higher courts and all prosecutors (including barristers) bound by CPS guidelines on pretrial, trial, and sentencing practices. Indeed, the CPS has been instrumental in creating a new “third arm of Anglo-Saxon law,” published guidelines to complement statutory and case law.

Evasion prosecutions have always been different from the general run of those organized by the Crown Prosecution Service (CPS). There have been changes over years in the organization of prosecutions. Scandals, particularly in Customs and Excise prosecutions, have accentuated the need for investigation to be separated from prosecution, while pragmatic considerations argue for prosecutors’ early involvement in investigations. At various times since 1985 the prosecution decision has been taken within a prosecuting agency, within a tax collection agency, and by an agency separate from both. The lesson of the end of the Revenue and Customs Prosecution Office (RCPO) is that successful organization of evasion prosecutions requires that an appealing career be offered to those who conduct them.

The police are subject to a range of different legal controls. They have a general duty to uphold the law, and breach of this duty can, in principle, be enforced by way of judicial review proceedings brought by members of the public. If, in the course of enforcing the law, the police detain, arrest, or assault an individual without lawful justification, they can be held liable for the torts of false imprisonment or trespass to the person, and they may also be held liable for the tort of misfeasance in public office if they act maliciously and unlawfully in the purported performance of their duties. as well as statutory torts specifically aimed at the police. The Human Rights Act 1998 provides further significant additions to the claims that can be brought against the police, and these are considered further in chapter 7. Claimants have also sought to establish that the police, like other public authorities, can be held liable for the tort of negligence, and it is such claims that are considered in this chapter.

The argument of this chapter is that the last decade has seen a shift away from objectivity in the prosecution of sex cases. This shift has taken two primary forms. The first is the passing of new evidential rules, which have placed the experience of the complainant as a more central consideration in the trial process. The second is the development of tribunals the focus of which is primarily the delivery of therapeutic closure to complainants over and above the objective administration of justice. The shift towards emphasizing the need for a complainant’s closure, with guidelines and policies based on a presumption that he or she is a ‘victim’, means that due process for defendants becomes subsidiary, heightening the risk of more people being wrongly convicted in allegations involving sexual abuse.

This Chapter is mainly concerned with the considerations taken into account by the police and the Crown Prosecution Service in deciding whether they should commence a prosecution and (in the case of the CPS) whether they should discontinue a prosecution already begun. First, however, it is necessary to describe briefly the way in which criminal proceedings commence. A more detailed account will be found in Chapter 3.

This chapter presents an interview with Robin Duval. One of the difficulties with the British Board of Film Classification (BBFC) throughout a large part of its history was that it left an awfully large space available for newspapers and others who were hostile to the Board to fill in their own interpretations. It is asked whether the Video Recordings Act simply mistake offensiveness for harmfulness. The only way in which to deal with films fairly is to start from first principles in terms of the way things are now. It is suspected that the ‘gentleman's agreement’ has been comprehensively forgotten by the Crown Prosecution Service. The chapter also mentions that the ‘R18’ affair had long been a running sore for the BBFC.

In order to succeed in a negligence action, the claimant must establish that he or she was owed a ‘duty of care’ by the defendant. The following chapter examines the tests the courts apply to determine whether a duty is owed. It also considers the impact of jurisprudence of the European Court on Human Rights on imposition of a duty, and the particular difficulties imposing a duty in cases of pure economic losses, psychiatric harm and omissions. Not all aspects of duty of care are considered in this chapter. We examine whether imposition of a duty is fair, just, and reasonable in Chapter 4 and the related issue of justiciability in Chapter 2.

This book focuses primarily upon claims brought against public authorities for the tort of negligence. Where a public authority causes harm to an individual, either deliberately or carelessly, there may also be other remedies available to the injured party. The present chapter considers some of the more important alternative remedies, though perhaps the most significant alternative now available are claims brought under the Human Rights Act 1998, which are considered separately in Chapter 7. In this chapter we examine the torts of misfeasance in public office and breach of statutory duty as well as judicial review proceedings and complaints to the Ombudsmen.