The Age reported two days ago that Chief Magistrate Ian Gray suggested reviewing police acting as prosecutors in the Magistrates’ Court (and presumably also the Children’s Court). Assuming he was quoted accurately, what the Chief Magistrate said was genuine independence from investigating police was a problem, and also that police aren’t trained or resource adequately to deliver the service required by the Court.

The next day the Police Association responded that the Chief Magistrate should apologise.

This is an issue that crops up every so often, and for similar reasons to the Chief Magistrates’, we’ve seen the introduction of the independent CPS in the UK, and more recently, DPPs in Australia. Victoria led the charge in that regard, under then Attorney-General Jim Kennan. Former DPP Jeremy Rapke QC provides some of this history here.

As recently as the late 90s AIC conferences discussed why it is we ended up with police prosecuting, and whether they should continue to prosecute: check out Dr Chris Corn’s paper Police summary prosecutions: the past, present and future and Tony Krone’s Police and prosecution.

(I should make clear at this stage, I’m an ex-police prosecutor and so of course that influences my views about the topic.)

A couple of quick observations I think that are worth making: IMHO, it’s important to not reduce the discussion to a simple assertion that people with law degrees are going to do the job better and people without are going to struggle. As a broad proposition, there’s some merit to that, but it hasn’t always been the only pathway to legal practice, and even today, law graduates require further practical legal training before they are admitted to practice (and even then, we all embark on a lifetime of learning and improving). Plus, the harsh truth is that while there are some eye-wateringly über-smart lawyers around, there are also some whom you wouldn’t send down the road to buy a pie. The same can be said of some police — and can be said about some people in nearly any occupation — but the point is that a law degree alone is not automatically a guarantee of quality. (If that were the sole determiner, then the obvious solution would be to require them to obtain a law degree. I should add there are quite a few police prosecutors with law degrees or studying law, and a handful who are also admitted to practice.)

What a law degree does provide is a base level of knowledge and skill that should equip a person to operate in the legal system. But that can be gained in other ways — and the Chief Magistrate noted that, saying nothing is wrong with police prosecutors individually.

In fact, if you speak with judicial officers at some venues, they’re very happy with the service they get from their police prosecutors. Unsurprisingly, that’s mostly at venues where the prosecutors are relatively senior, and there’s low turn-over. One thing that some folks in Victoria Police don’t understand is that it takes a couple of years working in the courts to truly understand what you’re doing, and, that it’s a continual process. Everyone else in the legal industry understands there’s a difference between a two-month advocate and a twenty-year advocate, and ideally, the police need to train and develop their prosecutors, and then retain them for as long as possible to get the best from them.

Independence and perception of independence is an important consideration. It’s not always apparent from the outside, but the police prosecutors do provide some pretty robust advice to other police. So much so, that they’re seen as troublemakers by some parts of the police force. Of course, that might not always happen, but I’ve seen, and heard of, cases where OPP staff decline to follow a course of action because they can’t obtain the agreement of the informant, so again it’s not automatic that prosecutors from another agency will solve all the problems that might exist now. The police prosecutions division has expressly adopted the OPP guidelines for prosecutions, though you might not know it because its Standing Instructions aren’t available on the Victoria Police website. Something like appearing in suits rather than uniform would probably assist the perception of independence.

The perception of structural independence might take something more though. Perhaps a model similar to that in the Northern Territory, where police prosecutors fall under the direction of the OPP might be a solution? (In fact, the Chief Magistrate spent some time in the NT before returning to his current appointment in Victoria, and might have some insight into how well that system works.) I reckon that all of this is in fact symptomatic of a bigger issue about the independence of the police, and a clear view of whether they are ‘merely’ part of the executive and answerable to the government of the day, or if they have a responsibility independent of the government. Cast your mind back to the departure of the previous Chief Commissioner Simon Overland and the perception in some quarters of politicisation of the police force, and also have a look at the research papers on police-government relations commissioned as part of the Ipperwash Inquiry in Canada.

Last, adequate training and resourcing is obviously a legitimate concern of the Courts. I understand that the prosecutions division is having trouble attracting and retaining staff, partly because there are better financial benefits for operational police doing shift-work. The statistics bear out an increased case load in the Courts, and with the increase in police numbers, everyone expects that to continue. More cases will require more prosecutors, and as the range of charges that Magistrates’ Courts can deal with continues to expand — such as common-law offences — they’ll require more training and more expertise to deal with them. The OPP has the ability to brief the private bar when required, but the police don’t presently have that flexibility, so they need to recruit, train and retain to cover all their work themselves. My guess is that if the Chief Magistrate is seeing systemic problems, either directly, or reported to him in sufficient numbers to be a concern — and the way I read his comments, that is what he’s saying — then it suggests something’s not quite right.

I don’t think his comments are quite the cause for concern the Police Association expresses — note his suggestion of a “halfway house” where the police continue to prosecute but the processes are changed to better achieve structural independence — but it is clearly something that should be discussed. No doubt it won’t be cheap for the OPP to take over the role of prosecuting nearly 100,000 cases across the state and establish the infrastructure to do that from Nhil to Swan Hill to Orbost, but the real question has to be if the current system can properly support the courts. I think it can, but what do you reckon?