Leading Article: The evidence against the DPP

BARBARA MILLS, the Director of Public Prosecutions, has made some powerful enemies. She has laid siege to the barristers'monopoly of advocacy in higher courts. She has irritated police officers by allowing Crown Prosecution Service staff to reject forms that are wrongly filled in. She has shocked civil rights groups by wanting to deny some people accused of crimes a jury trial and to force others to disclose their defence in advance. It is perhaps no wonder that Sir Nicholas Lyell, the Attorney General, backed her less warmly on the radio yesterday than he might have done.

That is a pity. The CPS's job, fundamental to the independence of the legal system, is to take a detached look at the evidence assembled by the police against those they arrest and then to decide whether prosecutions should proceed. Ms Mills should stand or fall on whether the 2,000 Crown Prosecutors under her authority are making the right decisions.

The accusation made against her is that while she had an insatiable taste for blood in her days at the Serious Fraud Office - prosecuting several expensive and time-consuming cases that later fell apart - Ms Mills in her present job is too shy of the courts: she is turning out cases that it is the job of magistrates or juries to decide.

At first sight, the figures look damning; with evidence of rising crime, the number of cases that go to trial has actually fallen. But trends over time alone are meaningless. The fall in the number of cases put before the courts might just as easily be because overstretched police officers are forced to ask the prosecutors to initiate cases based on flimsier evidence.

Crown prosecutors are told to apply two criteria in deciding whether to prosecute. They must be sure the evidence is strong enough; prosecutors must believe they have a 'realistic prospect of a conviction'. But while the code of practice for prosecutors is strong on detail, the word 'realistic' is left undefined. Does it mean that a prosecution should go ahead if its chance of success is 25 per cent, 51 per cent or 90 per cent?

It is impossible to tell from the emotional anecdotes provided by the police and the broad statistics offered in return by the CPS what Ms Mills's guiding principles really are. The line is evidently difficult to draw: too few prosecutions, and the police will become disgruntled; too many which fail, and the Government will complain ever louder about the costs of overburdening the legal system.

But Ms Mills may be in danger of forgetting that the evidence is only one of the criteria the CPS must use to decide which cases go to court. It must also assess whether prosecution will be in the public interest. If the CPS lowered the hurdle for evidence and raised it for public interest - for instance, with a predisposition to prosecute those who betray positions of trust - it might be able to satisfy both the exigencies of public spending and the need for justice to be seen to be done.