In England and Wales [1], criminal trials take place adversarially. Before an impartial tribunal, evidence of alleged criminality is put forward by the Crown and answered by the defendant, and a jury (in serious cases) determines which account is true.

For justice to result, certain principles have to be kept to. Some of them are:-

• it’s for the prosecution to prove their case, not for the defendant to disprove it
• a defendant is regarded as innocent until proven guilty
• a jury cannot convict unless it is sure [2] that the defendant is guilty of the offences charged
• the judge and prosecutor must act according to standards of impartiality and fairness.

Previously we argued that both a new-found focus on the ‘victim’ and a growing irrational moral panic about sexual offences is changing the criminal justice system in England and Wales for the worse – and particularly in sexual offence cases. These twin emphases are disturbing the critical balance of fairness in this adversarial process.

Here we claim that prosecutors too often allow themselves to be sucked into this obsession with ‘the rights of the victim’ and morality. Insofar as they take that step away from objectivity, they begin to act as advocates for the ‘victim’ rather than as ministers of justice.

But first, some generally accepted international standards by which prosecutors are supposed to act.

Standards

In 1990 the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders set out a number of guidelines, among them:-

13. In the performance of their duties, prosecutors shall: (a) Carry out their functions impartially and avoid all… discrimination; (b) Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;…

It is interesting to note that a balance between the position of the victim and the suspect is explicitly required here.

The American Bar Association sets the following out as Standard 3- 1.2(c) of its prosecution standards:-

The duty of the prosecutor is to seek justice, not merely to convict.

The Standards of Advocacy of the Public Prosecution Service for Northern Ireland state:-

4. …It is not the duty of Prosecution Advocates to obtain a conviction by any means at their command…

6. Prosecution Advocates must have regard to the comments of the court in R -v- Gonez [1999][3].

“……it is the role of prosecuting counsel throughout a trial… to act as a minister for justice… It is incumbent on counsel prosecuting not to seek to excite the emotions of a jury… A final speech should… be a calm exposition of the relevant evidence,… and an equally calm invitation to draw appropriate inferences from that evidence.”

There is more helpful guidance in the judgment of the Court of Appeal in Northern Ireland in the case of R v Anthony West:-

In Boucher v. R [1954] 110 CCC 263 it was stated:- “It is the duty of Crown counsel to be impartial and exclude any notion of winning or losing. He violates that duty where he uses inflammatory and vindictive language against the accused and where he expresses a personal opinion that the accused is guilty.”

That judgement mentions with approval the passage from R v Gonez and quotes from paragraph 1701 of Code of Conduct for the Bar of Northern Ireland:-

“It is not the duty of prosecuting Counsel to obtain a conviction by all means at Counsel’s command but rather to lay before the court fairly and impartially the whole of the facts which comprise the case for the prosecution…”

and from the Public Prosecution Service Code, paragraph 5.1.5:-

“A prosecutor must not advance any proposition of fact that is not an accurate and fair interpretation of the evidence…”

Commentary

It used to be the invariable rule that prosecution counsel would steer clear of talking to any prosecution witness, in an attempt to preserve and demonstrate impartiality. It’s now common for the complainant to be seen by counsel in sexual offence cases, before and during the trial. No one is suggesting that anything improper takes place. Often, the visit is to ensure that the complainant is feeling supported and is having his or her needs met. Still, this risks damaging an important principle of apparent impartiality.

There are other examples of a tendency towards prosecutorial non-objectivity – or, which is as bad, the appearance of it – which we will explore more full in later posts. Here are some of them in a nutshell.

The blurring of lines – in prosecution opening speech, cross-examination and final speech – between, on the one hand, evidence of criminality and, on the other, evidence of unwisdom, sleaziness or inappropriateness well short of criminality.

A habit of commenting on a defendant’s people skills, parenting skills, remoteness or ‘touchy-feely’ tendencies [4], or general demeanour.

The use of ‘similar fact’ or ‘bad character’ rules and applications to bring into the examination of alleged criminal behavior all kinds of actions or omissions which, in themselves, are simply part of the rough and tumble of everyday life.

The repeated use of ‘victim’ and ‘paedophile’ where less emotive words such as ‘complainant’ and ‘sexual offender’ would do.

To be scrupulously fair, prosecutors are in a cleft stick. They want to get appointed to the next case. Unless there is corroborative evidence, it is often the word of complainant against defendant. Quite naturally, prosecutors will feel frustrated at not having a knock-down piece of evidence to wave around, or a killer point to be able to make to the jury. So they amass material, some of it relevant, some of it less so, in the hope that, if they throw enough mud, some of it will stick.

The line is a fine one, but it is quite frequently transgressed. To the extent that this line is crossed, justice is not well served.