Having reviewed the arguments in favour of removing the prosecution function from police forces, (but without commenting on those arguments) let’s consider whether those views can be equally applied to regulators.
- 1 Application of traditional arguments to regulators
- 2 Better Questions
- 3 Conclusion
- 4 References
- 5 Further Reading
Application of traditional arguments to regulators
Lack of legal training
Of course prosecution should be left to lawyers. (Of course a lawyer would think so.) But regulators (to my knowledge) always use lawyers, in-house or external, to prepare and prosecute criminal matters.
Lack of impartiality
Can the regulator prosecutor “divorce the ideological and organisational values of [regulator] investigators from one of the most sensitive decision-making processes within criminal justice administration”?
I think so.
I think it is easier for a regulator prosecutor than a police prosecutor to say to an investigator about her brief “you know, this isn’t strong enough for a prosecution”, because a regulator has many enforcement options. When a regulator decides to prosecute, it eschews civil and administrative options with a lower standard of proof, and, possibly, lower costs, less onerous procedural requirements and shorter timeframes. The regulator prosecutor can say “look, we can’t prosecute this, but we can issue a public warning and seek an injunction and declarations, or think about imposing licence conditions, or enter an enforceable undertaking and monitor the situation.” So, whereas a police prosecutor may, arguably, feel pressure to run a prosecution because the alternative is no action at all, a regulator is never in such a predicament.
It’s particularly important, I think, to regulators, that when they do choose to prosecute, they secure convictions. When Ayers and Braithwaite first described the ‘responsive regulator’ in 1992, they described prosecution as a ‘big stick’ – a frightening but rarely used tool, the mere threat of which would help maintain order. But if the regulator uses that big stick and misses, the threat is reduced, making things harder for the regulator. There’s real incentive, I believe, for regulators to use their criminal enforcement options very sparingly.
It’s also worth recalling that at the time the ‘impartiality’ critiques were made, police prosecutors were not, generally, legally trained, let alone admitted to the profession. I trust that lawyers are capable of impartiality when assessing briefs.
Transparency and consistency
I am not convinced that a DPP’s decisions – to prosecute or not, to determine which charges to file, to continue or discontinue proceedings, to accept a plea to lesser charges and so forth – are more transparent than a regulator’s.
Both processes occur behind office doors.
Both processes are governed by published policies; generally Australian regulators apply the relevant state DPP’s prosecution policies when determining whether to initiate proceedings, in addition to their general enforcement policy.
Reasons are not publicly provided by a DPP when discontinuing a prosecution.
The decision not to initiate criminal proceedings in the first place is virtually never announced publicly by the CDPP or ACT DPP (being the only DPPs in Australia tasked with making those initial decisions to prosecute). On the other hand, larger regulators will often explain publicly why they have not taken certain actions: they may decry the criminal law provisions were too narrow and so civil action was reluctantly preferred, or they may explain that owing to the offender’s cooperation and genuine contrition, softer enforcement action was considered appropriate.
Whether a prosecution is conducted by a DPP or regulator, affected parties have the same rights to information. In Victoria, for example, complainants have rights under the Victims’ Charter Act 2006 to be kept informed by investigators about the progress of a criminal investigation (s8), and to be advised by a prosecuting agency of any charges filed, the reason charges are not filed, any decision to substantially modify charges, or not to proceed with charges, or accept a plea of guilty to a lesser charge (s9). An accused has rights under various Acts, including the Criminal Proceedure Act 2009 and the Charter of Human Rights and Responsibilities Act 2009 (indeed, complainants also have rights under this Charter, a matter recently illustrated by the case of Nassir Bare v IBAC & Ors) and rights to access information about prosecutorial decision-making also exist under FOI legislation.
It is worth noting that legislation can require transparency of decision-making, and, in some contexts, does so. Australia’s uniform Work Health and Safety legislation imposes a requirement upon the regulator to provide written reasons for its decision not to prosecute, in certain circumstances: s231(6).
SafeWork Australia has co-ordinated the development of a National Compliance and Enforcement Policy for all WHS regulators in Australia, demonstrating that consistency of approach can be achieved across agencies. In fact, consistency of approach may be better achieved by context-related agencies developing uniform policies, than regulators submitting briefs to one of the eight Australian DPPs, none of whom have comparable uniform, context-based prosecution policies.
I have suggested that regulators prosecute sparingly. If this is true, there should be few ‘hopeless’ prosecutions brought by regulators. And perhaps regulatory lawyers, who have greater familiarity with the particular (often technical) legislation under which they prosecute, will conduct a prosecution more efficiently than DPP staff who are less familiar with the relevant regulatory framework.
However, I think that most appellable errors are ‘criminal procedure’ issues. Being criminal law specialists, the DPP’s staff are less likely to make procedural errors resulting in appeals. Appeals and retrials are horrendously expensive.
Of course, transfer of briefs to the DPP results in some doubling up of work, which increases costs; and it would probably be necessary for the regulator solicitor to instruct a DPP prosecutor in the Magistrates’ Court, to assist the prosecutor with questions about the regulatory framework and technical issues. Whether or not it is cheaper for the DPP to run summary prosecutions would really depend on the regulator. For some it would be cost effective. For others it would not.
The closer relationships between prosecutors and investigators that is encouraged by their co-location within a single agency does increase the chance of corruption tainting the work of both investigator and prosecutor. One hopes that lawyers may be trusted to uphold their duties and work with integrity so as to avoid corruption.
The question then, is the size of that risk of corruption, the cost and effectiveness of the proposed solution, and the nature of any risk inherent in the alternative.
The transfer of prosecution work to a DPP’s office could reduce the investigator-prosecutor relationship to an ‘arm’s length’ association. This facilitates the processes of discontinuance and acceptance of pleas to lesser charges, but may do so at the expense of the prosecutor properly taking into account the regulator’s expertise and views regarding the public interest. Failures of communication and understanding are more likely; friction and resentment more likely. Which risks ought be preferred?
It’s not their core function
It has always been part of a regulator’s function – part of the identity of the regulator – that they enforce the law they administer, which includes taking litigation where appropriate, whether civil or criminal. The critique that police forces were never designed for legal enforcement activity is one that cannot be transposed upon regulators. The Ayers and Braithwaite framework cited earlier, identifies this litigation (and prosecution) power as part of the essential identity of the effective, responsive, regulator.
These old arguments are not terribly convincing when applied to regulators. I think the world has changed so much since these debates were originally held in the 1970s and early 80s that these old criticisms – which, it must be said, were never levelled at regulators1 – are no longer helpful. Better to start with new questions, not criticisms of old police forces and old cultures:
- Who should make the decision to prosecute [a ‘regulatory’ offence]?
- Who should conduct the prosecution [of a ‘regulatory’ offence]?
- Is there any good reason to answer these questions differently in relation to summary, as opposed to indictable, prosecutions?
Who should make the decision to prosecute?
The decision to prosecute is based on two considerations: is there is a reasonable prospect of conviction? and is the prosecution is required in the public interest? 2
Arguably, no-one is in a better position to assess the public interest in prosecuting, or not prosecuting, a ‘regulatory’ offence, than the regulator, owing to its deep knowledge of the regulated sector and its ability to assess the impact that prosecution, as opposed to some other type of enforcement response, will have. Furthermore, the regulator may be the only one capable of properly assessing whether the potential prosecution fits within its current enforcement priorities, whether its resources would be better spent in another way, and whether there is a more efficient or appropriate way to respond to the conduct. These are parts of the ‘public interest’ question that are unique to ‘regulatory’ offences.
But, as prosecution specialists, perhaps no-one is in a better position than the DPP and her staff, to assess the quality of evidence in the brief, and the likelihood of conviction. Then again, perhaps the regulator outsources its prosecutions to criminal specialists within the government solicitor’s office, or private firms, and perhaps those lawyers have expertise comparable to the DPP’s lawyers.
Who should make the decision? I’m inclined to think the regulator should – but that they should have free and speedy access to DPP advice on the strength of a brief, if they want it.
Who should conduct the prosecution?
A competent lawyer, sensitive to the regulator’s enforcement priorities, with criminal procedure expertise and subject-matter expertise. I’m tempted to write, “a competent, non-corrupt lawyer with integrity“, because those qualities are essential, but I have left them out because I am assuming that a lawyer necessarily has integrity and is not corrupt.
If such a lawyer is available to the regulator either as a member of staff, or can be briefed from a private firm or government solicitor’s office, then I think that is satisfactory. But if no such lawyer is available to the regulator, then the regulator ought to be able to ask the DPP to prosecute for it.
Summary v Indictable prosecutions
Legislation requires that DPPs conduct all indictable prosecution. So should summary regulatory offences also be prosecuted by DPPs?3
There are probably some regulators – perhaps those who outsource prosecutions to the government solicitor or private firms – who would love to have access to the DPP’s services. Other regulators would resist any loss of autonomy and control over their prosecutions.
Provided that summary prosecutions conducted by regulators are of the same, or better, standard as those prosecuted by a DPP, I cannot see any compelling reason to send all prosecution work to the DPP. But if a regulator is not providing high quality prosecution services, then it is an unacceptable disparity. All accused persons, whether accused of a summary or indictable offence, deserve the case against them to be presented competently, fairly and efficiently.
A respectful relationship between regulators and DPPs, with a free and speedy flow of advice and services from one to the other, can only be a good thing. But it’s difficult to achieve. Regulators are expected to act very quickly; getting a DPP involved in decision-making and provision of advice necessarily slows things down. Personalities matter: do DPP staff care about technical ‘regulatory’ offences? Do they care about the regulator’s enforcement priorities when assessing a brief or negotiating a plea settlement? Are they willing to accept that a regulator’s views about the public interest have more weight than a police officer’s and shouldn’t generally be overridden?
I haven’t seen the status quo criticised anywhere. We’re working with a situation where Commonwealth offences are all prosecuted by the CDPP, but State summary offences are prosecuted by regulators (and police). Despite these two significantly different approaches, I haven’t seen any noise about one approach being better than the other.
It would be very interesting to ask magistrates whether they perceive qualitative differences between summary prosecutions run by regulators, and those run by the CDPP. Are the rates of conviction different? Is the length of trial different, the rate of appeal, the professionalism of prosecutors? Or does it vary from regulator to regulator? And it would also be helpful to hear from regulators and DPPs about their experiences. I don’t think there is, on the face of it, an obvious answer about whether regulators should prosecute: what really matters, now, just as in the 70s and 80s, is whether the current system is working. It wasn’t working in the 80s – independent DPPs were sorely needed – but perhaps the system is working now, owing to cultural evolution within regulators and summary courts. Perhaps the establishment of DPP offices has impacted the way prosecutions are conducted generally, even in matters prosecuted by others, and perhaps that is enough for just outcomes – for the time being.
Christopher Corns, Public Prosecutions In Australia: Law, Policy and Practice (Lawbook Co. 2013);
Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press, 1992).
For those interested in the independence and accountability of the DPP office, you may find it interesting to contrast Mr Rozenes QC’s views regarding the relationship between the CDPP and the Commonwealth Attorney-General, with those expressed at the same conference, by Mr Flatman QC, then the Victorian DPP, about the relationship between the Victorian DPP and the Victorian Attorney General. These different relationships persist today.
- In fact, the only place I saw the role of regulator prosecutors considered, was in the Review of the Criminal Justice System in Northern Island, in which the Criminal Justice Review Group said forcefully:
the independence of the prosecution function stands at the heart of the rule of law. In a common law environment the prosecutor stands between the state and the individual and it is critical therefore that the prosecuting authority is independent from the executive. (at 4.4)
and proceeded to recommend that all prosecutions – even “trial cases, minor regulatory traffic offences for example” be transferred to the DPP’s office, so that police no longer have a role in prosecuting offences (at 4.127). However, without any explanation at all, it made this exception:
However, we do not suggest any change to the current arrangements whereby prosecution for TV licence offences under the Wireless Telegraphy Act and motor tax offences are brought by the Regional TV Licensing Centre and the Driver and Vehicle Licensing Agency respectively. Nor do we propose any change in the arrangements for other prosecutions currently carried out under the auspices of government departments or agencies, many of which are presented by the DPP.
It’s unfortunate the Group did not provide reasons for this recommendation, which is entirely at odds with its otherwise staunch advocacy of separation of prosecution from the executive.
- This is the policy of every Australian DPP, and frequently cited in regulatory Enforcement Policies. The second limb is explained by the Victorian DPP as follows: “If the prosecutor is satisfied that there is a reasonable prospect of a conviction, the prosecution should proceed unless there are public interest factors tending against prosecution which outweigh those tending in favour.” (Director’s Policy, Prosecutorial Discretion, )
- Note that some regulators’ legislation contains only summary offences. And recall that the CDPP has granted some regulators, including ASIC and the ATO, permission to unilaterally prosecute certain commonplace summary matters. I wonder whether this is a budgetary issue, or whether the CDPP accepts that ASIC and ATO prosecutes these matters with the same competence and integrity as CDPP staff.