The prosecutors presentation and manipulation.

According to Parker et al, the prosecutors occupy a somewhat different position from the other professional groups in the courtroom, in that they do not have any direct influence on sentencing, '..the prosecution was not mentioned by magistrates as an influential source of information’. Although in one court they did identify one chief prosecutor who 'was very adept at playing cases up and down ..' (Parker et al, 1989, p99). From my own observations and experience I found little reason to disagree with these observations, until one day ....

I had been aware for a long time that some prosecutors either emphasised or minimised certain aspects of the cases they were presenting, this being dependent upon their ultimate objective. I was particularly aware of the way that prosecutors often emphasised the aggravating factors when making applications for defendants to be remanded in custody. What I had not realised was that this tactic of playing things either up or down was not only used in individual offences, but these opposites could also be applied in their different forms to the same offence at different stages in the proceedings. To demonstrate the way in which this technique can be applied, I will use an example of a case in which I was personally involved, initially as a participant and then as an observer. The case involved the 'serious' charge of burglary. On the first occasion the prosecutor made a strong application for the defendant to be remanded in custody. The bases of the application were the seriousness of the offence, the considerable criminal antecedents of the defendant and a history of the defendant's failure to surrender to the courts on previous occasions when he had been granted bail. The magistrates were told that whilst the building was a public house, and therefore commercial premises, a part of the building did contain residential quarters and the building had been entered in the early hours of morning whilst the residents were asleep. All factors which were introduced to demonstrate the seriousness of the offence. The bench were also told that less than two weeks previously the defendant had attended at a neighbouring court charged with offences of dishonesty. It was also revealed that he had a considerable record of previous convictions, some of which had resulted in custodial sentences being imposed. The prosecutor even went as far as expressing an opinion that if convicted of this offence, the defendant might well be facing another custodial sentence. The defendant was remanded in custody, a decision which was repeated by another bench approximately one week later, although the defendant was later granted bail by a judge with the condition that he resided at a Bail Hostel. The second time I was involved in this matter was when, as an 'observer*, I viewed the proceedings from the well of the court. On this occasion the hearing was before a totally different bench and the facts were presented by a different prosecutor, but I assume from the same prosecution file. The magistrates on this occasion were being asked to decide venue. Where should the case be heard? Was the offence so serious that it should proceed to the Crown Court or did the magistrates consider that it was a matter which could be dealt with to its conclusion in the magistrates' court and within their limited powers? To my surprise both the prosecution and the defence advocates indicated to the magistrates that in their opinions this offence did not figure very high on the scale of seriousness and it was therefore 'eminently suitable' to be dealt with summarily. The prosecutor then proceeded to present a case which was designed to both minimise the serious aspects of the offence and to justify the application which was being made. Neither at this stage of the proceedings can the defendant's previous record be produced to the court. In line with the facts which had been presented to them and the joint application made, the magistrates agreed that the matter was quite suitable to be dealt with in their courts. Having been in the courtroom on both occasions, admittedly in different roles, I did

leave the court on the second occasion wondering whether it was indeed the same offence that had been dealt with on both occasions. What is more I did not just feel that the magistrates had been influenced, I would have used the word manipulated. Neither am I certain whether on the first occasion the defendant was unnecessarily remanded in custody or whether on the second occasion he was treated leniently. However on both of these occasions 'justice' appeared to have been called into question. It did appear as though a game was being played.

In debating the role of the Crown Prosecution Service, the Justices' Clerk in the study area implied that it is not necessarily what the prosecutors say in the courtroom which influences the issues as much as the decisions which are taken outside of the actual hearings. "They decide what charges are eventually put. In most cases the evidence gathered by the police determines this, but not always, .. in most cases the CPS can bring what charge they want even if the effect, or even intention, of bringing a lesser charge is to deprive the defendant of any right to jury trial and/or to reduce the sentencing options of the court" (April 1993).