THE PROSECUTORS’ CONVENTION 2009

Written 14th May 2014 by Olliers Solicitors

2009 sees the introduction of the Attorney Generals Prosecutors’ Convention. In years gone by joint investigations between more than one Prosecuting Authority were rare.

Prosecuting Authority

In the past if one Prosecuting Authority became aware of an offence that might be of interest to another Prosecuting Authority there was no structured approach as to how it should be dealt with.

Various scenarios were possible. No action might be taken. Alternatively the other, potentially interested, Prosecuting Authority may be advised or become aware of the potential offence leading to an entirely separate investigation involving duplication of efforts or an inconsistent approach to the investigation. Evidence of joined-up thinking would be rare.

In an increasingly complex society joint investigations are on the increase. Indeed certain bodies, for example HMRC have officers specifically employed to assist other Prosecuting Authorities. It is increasingly common for a suspect to be interviewed by perhaps Police or SOCA officers, whilst at the same time, an officer from HMRC is involved in the questioning in relation to any tax offences that may have been committed.

Attorney Generals Prosecutors’ Convention 2009

As a consequence of the movement towards joint investigations, the Attorney Generals Prosecutors’ Convention 2009 has been drawn up and is intended to address the responsibilities of Prosecutors where more than one authority is involved.

There are 17 parties to the Convention, namely:

  1. Attorney General’s Office;
  2. Civil Aviation Authority;
  3. Crown Prosecution Service;
  4. Department for Business, Enterprise and Regulatory Reform;
  5. Department for the Environment, Food and Rural Affairs;
  6. Department for Work and Pensions;
  7. Environment Agency;
  8. Financial Services Authority;
  9. Food Standards Agency;
  10. Gambling Commission;
  11. Health and Safety Executive;
  12. Maritime and Coastguard Agency;
  13. Office of Fair Trading;
  14. Office of Rail Regulation;
  15. Revenue and Customs Prosecution’s Office;
  16. Serious Fraud Office;
  17. Service Prosecuting Authority.

The purpose of the Convention is to ensure that cases are conducted in a just manner which serves the public interest. The Convention is to ensure fairness to the victim and also to the Defendant.

If more than one Prosecuting Authority is involved there should be dialogue between the agencies and agreement as to the course of action to be followed.

Prosecutors’ Responsibilities

The Prosecutor will be involved in the case at an early stage. They should identify whether any other Prosecuting/Regulatory Authority should be interested in the matter.

The name of any “overlapping” interests should be established. Effective lines of communication should be drawn up. An agreed case management strategy should also be drawn up.

If there is not already an agreed memorandum of understanding between the agencies, consideration should be given to drawing one up for the purpose of the case in question.

Investigation plans should also be coordinated.

If a Prosecution is needed in the public interest, then the right Authority should proceed with charges that best reflect the nature and seriousness of the offence.

If the Prosecution is not to proceed then there should be agreement about which civil/regulatory sanctions are warranted.

Early considerations

The Attorney General has identified the following points for early consideration:

  • Nature and focus of any parallel investigation
  • Stage reached in any investigation
  • Whether joint investigation should be conducted or if this is not possible how related investigations should be coordinated
  • Which Agency should lead
  • Timing of proceedings
  • Evidence sharing mechanisms
  • Need for specialist advice
  • Arrangements for both service of evidence and retention/disclosure of unused material
  • Whether a joint Prosecution takes place – communication of decision both to suspect and victims

Ensuring Effective Operation of the Prosecutors’ Convention

A Senior Responsible Officer (SRO) will provide the initial point of contact for inter-agency coordination purposes. This individual will ensure effective communication between agencies. The SRO should also monitor the manner in which the Convention is given effect and take action to resolve any difficulties.

The SRO will also ensure the Prosecutors are aware of the Convention and will provide them with guidance where required. The Prosecution Authorities may develop separate protocols to deal with overlapping areas and these will supplement existing protocols.

Conclusion

On the whole the Prosecutors’ Convention 2009 should ensure a smoother and closer working relationships between the investigating authorities which in theory should be a benefit to a suspect, victims and also the interests of justice.

The Convention can be found on the Attorney General’s website at http://www.attorneygeneral.gov.uk/sub_publications_guidelines.htm.

Richard Holliday

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