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Ask the expert: cops and the courts

This week we ask an expert on policing and justice about all things “law and order”! How do police officers work with prosecutors to bring suspects to court? And how did this vital relationship begin?

The police force- as anyone who watches a certain ‘law and order’ themed TV show knows- is only one part of the English and Welsh criminal justice system. To put offenders behind bars, the police work closely with another important group: the Crown Prosecution Service (CPS). While the police investigate crimes and arrest suspects, it’s the CPS who bring those suspects before a court and- with barristers robed and wigged- try to prove their guilt before a judge and jury.

Most of us have some notion of the police ending an investigation by “handing a file to prosecutors” who take legal action on behalf of the public. But few of us are familiar with how this system came about, or just how recent a development it actually is: while public-service policing is usually traced to 1829, the CPS is much younger, formed in the 1980s, less than forty years ago. In fact, before the 1980s the “State” hardly prosecuted anybody at all. There was virtually no such thing in England as a “public prosecution”. So, who exactly did take suspects to court before the 1980s? And who caught them before the police force was founded?

Dr. David Churchill is an Associate Professor in Criminal Justice at the University of Leeds, specialising in the history of policing and criminal justice. He says that for the better part of English history, investigating and prosecuting criminals were matters for the victims of crime and their families.

“Parish constables [volunteer officials that existed from the Middle Ages] had responsibility for preserving the peace and apprehending felons before the nineteenth century. But they were not responsible for prosecution- for formally bringing a legal action against a suspect.” Instead, if suspects were prosecuted in court, it was by the victim of the crime or a relation of the victim, typically the head of the household. “In this sense it was a system of ‘private prosecution’”, says Dr Churchill. “Any private person could prosecute.” Not only that, but “it was typically the victim who investigated a case, rather than the parish constable.”

Indeed, the constables’ power to arrest on their own authority was usually limited to fresh pursuit, when they directly witnessed the crime take place. Constables were merely ‘stewards’ of the justice system, but “it was up to private individuals to decide when the criminal law would be used against suspects”, when suspects should be apprehended and when they should be prosecuted.

This was the case right up until the nineteenth century. So, did this mean that if no victim or relation went to court to have a suspect arrested and tried, that suspect would get off scot-free? Even infamous murderers? Surely there were some public authorities that paid heed to catching and prosecuting criminals themselves? Dr. Churchill says technically not. “In cases of very serious or notorious crimes, a local landowner, magistrate or constable may have prosecuted suspects even though they had no personal connection to the crime. But technically they did so as private citizens, and it was unusual.”

Only in the eighteenth century did public institutions take the first tentative steps to prosecute lawbreakers, in quite limited circumstances. These institutions, says Dr Churchill, “included the Bank of England in cases of banknote forgery. For more minor offences, prosecution by police officials was more common. Constables or watchmen would prosecute what one might call ‘disorder offences’- apparently victimless offences such as drunkenness, obstruction, vagrancy and so on- plus people found in possession of goods suspected stolen. But still, they did so technically as private persons. Most cases were still being brought by victims even as we move into the nineteenth century.”

That century was, however, one of real change. The new public-service police forces were founded from 1829 onward, and these took over the role of the old-fashioned constables in preserving the peace, as well as the victim’s role in investigating offenders. These professional officers could seek out criminals in a way that voluntary constables never could. ‘New’ police had far-reaching powers of their own, whereas the old watchmen and constables had often been directed by the courts, particularly by local magistrates known as Justices of the Peace, who were often responsible for telling constables who to arrest. (In 1750, magistrates at Bow Street Court in London had even started paying men to apprehend suspects being prosecuted. These “Bow Street Runners” are often held up as forerunners to today’s police forces.) But the ‘new’ police were not under the courts as ‘subordinates’. They did, nevertheless, stay closely engaged with the courts for a while longer, for in addition to taking over the victim’s role of investigating, the new police also began to take over responsibility for prosecuting offenders in court, a role they would play for over a century.

Police prosecutions were still technically ‘private’ rather than public affairs, and there was certainly no separate prosecuting agency like today’s CPS. But the Victorian period provides us with a handy bridge between the old private criminal justice system and the public one familiar today.

“We do not really know when it became common for police officers to bring prosecutions rather than victims,” Dr Churchill says. “Most court cases were still being brought by victims around the time the ‘new’ police forces were introduced in the early nineteenth century (and in practice victims were still doing much of the investigating at this time). But by the end of the century it had become rare for victims to do so. They retained the right to prosecute privately (as we still do today, technically).” But the journey towards public prosecution had begun.

As the twentieth century dawned, the system of one public agency- the police- investigating and prosecuting crime was well established. The final step to our present system was to take the prosecuting role away from the police, and turn the process officially into a ‘public’ one.

“The CPS was formed in the 1980s,” says Dr Churchill, “and they were the first formal public prosecuting agency in England and Wales. Police officers had long brought most prosecutions, but technically they’d done so as private persons. Now the CPS formally make decisions about prosecutions, rather than the police.”

The formation of an independent service was recommended by a Royal Commission in the early 1980s, which declared it to be ‘unsatisfactory that the person responsible for the decision to prosecute should be the person who carried out… the investigation [and who was] incapable of making a dispassionate decision on prosecution’. A new system separating the police from the court process was advised. But rather than stepping backwards to a system of victims prosecuting, a public agency would be desirable, something akin to that used in the United States (where there have been public prosecutors- known as District Attorneys- since 1789!). Thus, the CPS came into being.

Today, Crown Prosecutors have teams of lawyers who assess the evidence against suspects gathered by the police and- if they believe that evidence is sufficient- bring legal proceedings against the suspect on behalf of the public. The CPS sends barristers (courtroom advocates) who argue the prosecution’s case before a jury. Such lawyers had previously been used by the police in order to prosecute successfully, and before that by private citizens under the old systems. But the use of ‘counsel for the prosecution’ was not as widespread historically as you might think.

“Lawyers appeared occasionally in prosecutions from the late 1600s in very serious cases (like treason and coining)” says Dr Churchill. “They gradually became more common at the Old Bailey from the 1730s- hired by private individuals- and were quite common there by the end of the eighteenth century, though they remained unusual outside of London.” By the mid-nineteenth century the new police forces were hiring lawyers who were not uncommon in the higher provincial courts. “Though at the lower, magistrates’ courts it was still usually police officers putting cases by the end of the nineteenth century. Many cities did establish regular ‘prosecuting solicitors’ to deal with prosecutions over the course of the century, on behalf of the police, but,” Dr Churchill admits, “we know very little about these agencies.”

The establishment of the CPS in 1986 was an important milestone in the evolution of modern policing. It not only made prosecution a fully ‘public’ matter for the first time, but created a separation of powers in the criminal justice system between the police who investigate crime, and the prosecutors who bring action against suspects in court. Indeed, it seems that today all branches of criminal justice have more independence: prosecutors from the police; and the police from the courts themselves.

“Yes, there is something in that,” says Dr Churchill. “Certainly, the old parish constables [before the nineteenth century] were under Justices of the Peace- local magistrates- who do not control police forces today. And later, police officers were responsible for prosecution where they are not today. So there is greater formal separation of roles and responsibilities.”

For just over thirty years now, the police have held the sole remit of investigating crimes. The burden of prosecuting, which they’d taken over from victims in the Victorian period, has been removed, and today officers receive regular advice and guidance from Crown Prosecutors as to what charges a suspect should face. Only in the most minor cases do the police still make the decision on formal charges.

Our sincere thanks to David Churchill of the School of Law, University of Leeds, for agreeing to talk us through the murky history of policing and prosecution. Dr Churchill is an historian specialising in policing and criminal justice. He is the author of “Crime Control and Everyday Life in the Victorian City: The Police and the Public” (Oxford University Press, 2017).

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