Nothing in the following article is meant to suggest that as defence lawyers we do not want the Crown Prosecution Service and the police to have equality of arms in relation to prosecuting motoring offences. We want all lawyers involved in the criminal justice system, whether defence or prosecution, to have the time and the resources to do the best they can to then enable the judiciary to hopefully make the right decision regarding guilt or innocence. We truly believe in equality of arms on all sides and the rule of law.

We have recently been working on two cases which involved the sending of notices of intended prosecution, and requests for driver information, under the delegated authority of the Chief Constable of South Yorkshire Police, David Crompton, during the period in which he was suspended (and ultimately forced to retire) as a result of comments to the press about the outcome of the Hillsborough enquiry. In relation to both of these cases we have encountered a certain advocate, and the company that he is employed by: ‘Road Safety Support Limited’ (RSS). We have encountered both previously in the context of our work as road traffic lawyers, but for the first time in relation to these cases we decided to stop and think about the way RSS Ltd are able to take over prosecutions brought by the police in the name of the state from the Crown Prosecution Service (CPS). We were concerned that perhaps we failed in the past by neglecting to scrutinise this; however sometimes even lawyers take things for granted and assume that everything is in order and that just because it has been ‘done that way for a long time’, it must be right.

As part of our investigations we have ascertained as a result of freedom of information requests sent out that in the region of 85% of police forces across England and Wales pay an annual subscription to RSS Ltd which for the year 2017 totals at over £400,000.

Now, we could be wrong, but the conclusions of our investigation into this particular issue raise massive concerns in relation to transparency, objectivity, independence, potential profiteering from alleged road traffic offences detected by the police and potentially selling reserved legal services without authorisation/regulation.

Road Safety Support Limited

The origins of RSS Ltd are complicated. There are connections with the Association of Chief Police Officers (ACPO), and the original company that ran the National Driver Alertness and Speed Awareness Courses (NDORS Ltd). Meredydd Hughes, former Chief Constable of South Yorkshire Police, was involved in both of these companies, and additionally was one of the original creators of RSS Ltd (and is a current director). There is plenty in the press about the disbanding of ACPO and NDors. All of the concerns raised echo our concerns in relation to RSS Ltd

On the creation of RSS Ltd Meredydd Hughes went to the press and announced, “We are saying to drivers who think they can try it on, ‘Come and get us if you think you are hard enough’ to motorists who had the audacity to try and defend allegations based on technical arguments, seemingly without merit.

We never encourage clients to raise technical arguments without merit; as they are unlikely to succeed and have no substantive worth to them. When we first take on a case our first question is “do you fundamentally accept that you did do what you’ve been accused of doing?” If the answer to that question is yes then we will of course point out any irregularities that may affect the prosecution’s ability to gain a successful conviction, but ultimately we will advise that the central issue the court will be concerned with is whether or not they believe beyond reasonable doubt that the individual concerned did what it is they have been accused of doing. Clearly anyone wishing to pursue a defence based on technicalities will not fair well under cross-examination if the court finds that there is a case to answer.

We think that RSS Ltd was probably born out of frustration on the part of the Police that privately paid defence lawyers had the resources and the capacity to devote huge amounts of time and energy to outwitting the Crown Prosecution Service based on technical arguments without apparent merit. We empathise with that frustration. The CPS clearly have limited resources and their lawyers have to deal with all aspects of crime. They are not specialist road traffic offence lawyers. Our suggested solution to that frustration and perhaps ‘inequality of arms’ would have been for the CPS to create a small dedicated group who could devote themselves entirely to becoming genuine experts in road traffic offence law; and then in turn build up a panel of independent experts who have the necessary expertise and knowledge to be able to give evidence in court as to the reliability of the devices, if used in the correct manner. The subscription paid by around 90% of police forces in England and Wales to RSS ltd could have been redirected back into the CPS budget to allow for this. The Crown Prosecution Service was created to conduct all litigation in the name of the state and to provide objectivity/impartiality. Prior to the creation of the Crown Prosecution Service there was a real concern that if the police were too heavily involved in the actual prosecution of cases (after being responsible for the investigation stage) they wouldn’t have the necessary objectivity/impartiality when prosecuting that is absolutely necessary when a case is bought in the name of the Crown. Crown Prosecution Service lawyers are not like ordinary lawyers who fight a particular corner. They don’t have an individual client. Their role is to help the court find the truth and to enable justice to prevail, whatever that might be.

We understand that, on the creation of RSS Ltd there was no tendering exercise where other companies had the opportunity to bid for the contract for these services, as offered to the police forces of England and Wales by RSS Ltd. RSS Ltd was given added credibility in the form of the full-time secondment of a senior Crown Prosecutor; to RSS Ltd. At the time the CPS employed the advocate directly.

RSS Ltd seems to be financed by subscriptions paid directly by individual Police forces, or by partnerships of Police forces that have banded together to deal with road traffic management issues. The mission statement RSS Ltd was plain for all to see and publicly announced by Meredydd Hughes and is contained in their website (which can still be seen to date). Their aim is to assist in relation to providing expertise in all road traffic offence matters where the police forces that subscribe seek their help. This includes expert witnesses, helping in the conduct of individual cases and providing a courtroom. On the face of it RSS Ltd seems to be selling the police a service. It seems this service includes reserved legal activities in the form of conducting litigation and courtroom advocacy.

Reserved legal activities can only be sold to the ‘public’ by businesses/individuals that are regulated and authorised to provide those services unless there is an exemption. Anyone selling reserved legal services without authorisation/regulation is potentially committing a criminal offence under the Solicitors Act 1974 and the Legal Services Act 2007. In addition to this there is a requirement for professional indemnity insurance to protect clients who receive legal services. The agreement between the individual police forces/partnerships and RSS Ltd suggests that the police forces/partnerships are the client. We know that RSS Ltd is not a regulated/authorised body according to the Solicitors Regulation Authority records. We have been told by Essex Crown Prosecution Service the advocate left the employment of the CPS approximately 18 months ago and we understand that he is now employed directly by RSS Ltd. According to the Solicitors Regulation Authority he is not an authorised sole practitioner.

RSS and Conflict of Interest

From the start, the seconded CPS advocate dealt with RSS’s courtroom advocacy, but from what we’ve seen he seems to have received his instructions directly from the Police rather than the CPS (his employer). We have seen communications between him and the police directly in relation to one of the cases we have been dealing with. This was one of the triggers for us starting to think about the dynamic of the relationship and whether it was the Crown Prosecution Service conducting these cases or whether the police were effectively bypassing the Crown Prosecution Service and going to RSS Ltd direct. This clearly then made us think about the contract between the police and RSS Ltd and raised the concern that RSS Ltd/the advocate were selling reserved legal services to the police when possibly not entitled to do so.

In one of the cases we have dealt with, the expert witness employed by RSS Ltd (the same company that now employs the advocate directly) announced that he had commissioned the speed detection device that was in question in the trial where our client was denying travelling at the speed alleged. So not only was he giving evidence to the court that the device was accurate and reliable beyond reasonable doubt, but he was also involved in the commissioning of that particular device, and additionally his professional colleague was in charge of prosecuting the case on behalf of the State.

Expert witnesses have to sign a declaration that their duty is to the court and not to the person that employs them. They must be impartial and able to assist the court in making a reasoned decision as to the complex issue in question. It is our view that if RSS Ltd are being paid by the police to train/give advice on camera installation/help with the commissioning of speed cameras/give expert advice in relation to enforcement/prosecute and conduct court room advocacy, then the business model of RSS ltd is dependent on impressing the police and helping them to gain convictions based on showing the court these devices are reliable.

If RSS Ltd were to lose cases where they had commissioned the camera/given expert evidence as to the reliability of it/provided a court room advocate on a regular basis, is it not the case that the police forces of England and Wales would start to question what they were paying their money for and perhaps stop subscribing? Is that not a vested commercial interest in the outcome of a case therefore undermining any suggestion of objectivity/independence?

Further in relation to the prosecution advocate, if you look at the Solicitors Code of Conduct it states that lawyers must have independence and objectivity. On looking at the case law on the role of a prosecutor in the courtroom on behalf of the State it is very clear that they must have objectivity and that they must be interested in seeking justice rather than aggressively trying to win a case at all costs. If you are employed by a business and your wage (and the wage of your colleagues) is dependent on the success of that business and the success of that business is dependent on winning cases (because the police might stop paying RSS Ltd if they were not successful in securing conviction), it seems obvious there would be a huge risk of a conflict of interest.

We find it difficult to understand how the advocate could abide by his professional conduct core principles when he is prosecuting on behalf of the company that pays his wage and where the success or failure of the business seems to depend on helping to successfully convict those accused.

Here is what the code for Crown prosecutors says about the role of a lawyer who acts on behalf of the Crown;

Prosecutors must be fair, independent and objective. They must not let any personal views about the ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation, or gender identity of the suspect, victim or any witness influence their decisions. Neither must prosecutors be affected by improper or undue pressure from any source. Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction.”

A Crown prosecutor does not have a vested financial interest in the outcome. They act on behalf of the state and they get paid no matter what.

RSS and the Provision of Legal Services

Being a qualified Solicitor does not mean that you can simply go out and sell legal services; it’s far more complicated than that. Solicitors have to be authorised and regulated: We normally achieve that by setting ourselves up as a recognised sole practitioner or by being employed by a firm that is regulated in its own right by the Solicitors Regulation Authority (SRA) unless there is an exemption. We also have to have professional indemnity insurance.

We are concerned that from inception RSS Ltd may have been selling reserved legal services to the police forces of England and Wales for the last 10 years. RSS Ltd was specifically established with a mission to provide expert help to the police and prosecution in road traffic offence allegations. RSS Ltd is not a law firm, nor is it regulated by the SRA.

The SRA do know of the advocate and he is regulated by them but not on the face of it authorised in his own right or by virtue of being employed by an authorised firm. Initially the SRA told us the records show that he is still employed by the Crown Prosecution Service. They have now confirmed that the records show that he works for RSS Ltd and describes himself as a Crown Advocate. The SRA have confirmed that he is not a recognised sole practitioner and he is not working for a law firm that is regulated by the SRA. Lawyers who work for the Crown Prosecution Service do not have to be authorised to sell reserved legal services, we have been told that effectively they are in-house lawyers for the Crown.

We have spoken to the SRA at length about whether he could be regulated under the remit of the CPS if he was acting as their agent whilst initially seconded and on subsequently being employed directly by RSS Ltd; they told us in a telephone conversation that if he is self-employed/employed by RSS Ltd as a Solicitor he still needs to be regulated in his own right with professional indemnity insurance even if this role could be described as an agent for the CPS unless there is an exemption.

Now, we could be wrong. There may be some way perhaps in relation to him being an agent of the CPS (albeit that does not sit with cases we have run where he has turned up at court and the Crown Prosecution Service had no idea he was going to be present and the police had instructed him directly); or there could be some form of waiver in place with the SRA (but again they have confirmed that they can see no obvious waiver on the system) or an exemption that allows him to be employed by a company that is neither regulated or authorised and still conduct reserved legal services.

If we are wrong and he is in someway excused from being regulated in his own right and RSS Ltd has found some way to avoid the need to be regulated in their own right in order to sell legal services; then this does not change the principles in relation to objectivity, independence, and the role of a prosecutor in seeking justice rather than setting out to win.

We just don’t think that anybody in the criminal justice system and specifically dealing with road traffic offence law (us included until now) has stopped to consider the ramifications of a private limited company being able to take over prosecutions instigated by the Police on behalf of the State. The Prosecution of Offences Act makes it clear that this is the role of the CPS and the CPS alone. It is perfectly acceptable for the CPS to use agents who are regulated and authorised in their own right and they do so on a regular basis; however the CPS still has to retain conduct of the case.

On one of the cases we have dealt with, the CPS turned up at court after having served a skeleton argument and they were ready to prosecute the case. A few days before the hearing we received a further skeleton argument directly from the Police and head of the Safety Camera Partnership. This was commissioned by the RSS advocate and on the day of the hearing he turned up at Court as well. The Crown Prosecution Service lawyer was genuinely baffled and the District Judge had to allow them time to discuss who was going to deal with the advocacy in the courtroom. Ultimately, the CPS acquiesced and allowed the RSS advocate to the deal with the case in the courtroom. The CPS claimed they had no knowledge that he had been instructed directly by the CPS to act as their agent in the case prior to the hearing. The CPS had no knowledge that he was involved in the case or that the police had gone to RSS ltd directly. We had questioned the service of the second skeleton argument from a different source on receiving it, but there was no explanation or response from the CPS in advance of the date the case was listed. Our barrister at Court was equally baffled by facing two different prosecutors.

RSS Ltd is described as a not-for-profit company, that doesn’t mean that people employed by it are not being paid for their employment. In a private limited company there is no power to force transparency as to how much they are paid. We believe there should be financial transparency when a company is helping in the prosecution of cases in the name of the state aside from being both properly authorised and regulated.

In theory there would have been no problem with RSS Ltd setting themselves up to provide expert guidance and advice to the police in how to use the devices and preparing expert witness reports for the court when necessary as to reliability of speed detection devices (subject to being able to convince the court that they have the necessary qualifications and objectivity), these are not reserved legal services. However, reserved legal services (court room advocacy and the conduct of litigation) can only be carried out by authorised individuals and regulated/authorised businesses, unless an exemption applies.

The purpose of the SRA regulating and authorising solicitors and organisations selling reserved legal services is to afford protection to the public and ensure those who are offering those services are accountable. We have raised some very serious questions on behalf of the public that need to be answered.