Investigators and prosecutors, or desperately seeking Scotland: reformulation of the Philips principle

Prosecution in England and Wales, traditionally private, was captured by the ‘new police’, creating an ‘English tradition’ unlike those of the rest of the United Kingdom. To overcome consequent problems, the Royal Commission on Criminal recommended the ‘Philips principle’, whereby investigator and prosecutor were separate, but co-ordinate, on which basis the Crown Prosecution Service was set up. However, the principle was in fact compromised by the ‘English tradition’, most obviously permitting continued police prosecution. Moreover, the Serious Fraud Office, set up shortly thereafter contradicted the principle. Yet, HM Customs and Excise addressed its serious problems by applying the principle. The CPS itself encountered difficulties flowing from the compromises. Reports (Runciman, Narey, Glidewell) recommended various devices, straining principle, until the Auld Report recognised that reformulation was necessary, along the lines adopted elsewhere in the United Kingdom, that is, by recognising that there should be investigator subordination to prosecutor