EHJ July 2005, pages 28

What is the prosecution's purpose in a case? Julie Barratt explains why winning at any cost should never override a local authority's duty to approach proceedings in an impartial manner

Does the prosecution ever win a case? According to the science of jurisprudence, no. The prosecutor, being as he is, neutral, never wins. Sometimes he will succeed in establishing the guilt of the defendant to the satisfaction of the court, in which case he does not win, because it will be a matter of regret to society that one of its members has breached its rules, and the whole of society must be the worse for it. On other occasions he will not succeed in proving what he has claimed, and all of society must be glad to see that the accused man go back to take up his rightful place in society.

The trouble with the science of jurisprudence is that, much as we would like to agree with the theories that it advances, it has little practical relevance in real life. I am willing to bet a not inconsiderable amount that most local authorities that lose a case in the court do not go back to the office rejoicing that the defendant remains free to take on his previous role in society, quite the reverse. Most are likely to go back gnashing their teeth and wondering where it all went wrong for them.

The prosecutor is required to be neutral for good reason. The law should never be used as a weapon, either by society generally against its members or by one individual against another. The prosecutor has a primary duty to the court to ensure that any case that he advances before it, passes the tests of being based in fact and being in the public interest that it be heard. It is to preserve the neutrality of the prosecutor that the Crown Prosecution Service is a freestanding body, and not part of the police. The CPS are required to consider files passed to them by the police in a dispassionate way, and advise against prosecution where the case is not made out on the facts as presented, or it would be against the public interest to proceed with the matter. Where the CPS advise against proceeding with a matter the police will invariably follow that advice, though more usually offering it as the excuse for dropping the case to the enraged public than with any noticeable degree of rejoicing.

Neutrality is very much harder to maintain within a local authority. The legal department, more often than not, is seen as part of the prosecution team, and in some cases may have advised throughout the investigation. How then can they be asked to take a dispassionate view of the facts? The situation is actually more complicated than that. The whole of the council, as the prosecutor, is required to be neutral. Most investigating officers involved in the case in hand will be far from that. They will have put in a considerable amount of work in investigating the case, and will want to succeed when the matter comes to court. They are hardly likely to take a "win or lose, I care not, society must be the winner" attitude. Neither would most of their line managers want them to. After the investment of time and money in the investigation, the very least that the council wants is to win, and to get the banner headlines in the local paper saying that it did.

Reconnecting with reality, there is nothing wrong with the council wanting to win, if they have conducted a fair investigation and the desire to win is for the right reasons. If a win will go some way to righting some major wrong - for example taking dangerous goods off the market, making a workplace a safer place for employees or stopping a defendant practising in such a way as to put other members of society at risk, then the desire to succeed can be justified. If the desire lies in "getting" someone who has been a persistent thorn in the side of the department, or who is being pursued for policy rather than public interest reasons, it cannot.

It is fine to care, but not to care too much. The danger is that the desire to win will take over, and will become the desire to win at all costs. We are all too familiar with miscarriages of justice where evidence has appeared or disappeared to suit the case, with devastating consequences for the defendant, although happily these cases rarely involve local authorities. Recourse to the law must never be used as a tool of reprisal. Rather the local authority should discharge their duty to being proceedings in an impartial manner, taking a dispassionate view of the findings of the court. Win or lose, it should be all the same, but rarely is in real life.

Julie Barratt is director of CIEH Wales