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Waqar Shah
The CPS recently faced the potential consequences of taking cases to trial on manifestly weak evidence.
Kingsley Napley recently acted for a client accused of a sexual offence against his ex-girlfriend. The police and CPS took 5 years to make their disposal decision. This is a timespan which, even by today’s woeful standards, was an egregious failure of the Crown’s duty to deal with cases expeditiously. The CPS thereafter compounded that failure by charging a case that had no hope of succeeding. Such was the case’s weakness that the trial judge dismissed it after the close of the prosecution’s evidence, without even leaving the matter to the jury.
The client’s family funded the case privately and rightly sought to recover their costs via an application for wasted costs. In an excoriating ruling following a contested hearing, the judge took the exceptional course of ordering the CPS to repay virtually all the costs that had been claimed. He described the Crown’s assessment that the evidence was sufficient to provide a realistic prospect of conviction as “wishful thinking” and pertinently reminded the CPS, in terms, that complainants need to be treated with respect, which includes, where necessary, telling them that the case will not be proceeding to court because it is not evidentially strong enough.
This case starkly highlights the issues that are of most concern to criminal practitioners who specialise in acting for clients accused of sexual offences, which are the long delays in charging decisions being made and the increasing trend towards weak cases being charged.
Delays at all stages of the criminal process have increased in recent years, especially in London. Young and inexperienced police officers are being asked to investigate serious offences, with the volume of their caseloads often seeming difficult to manage. Similarly, CPS reviewing lawyers in Rape & Serious Sexual Offences (‘RASSO’) teams seem to be struggling to make timely charging decisions under increasingly heavy workloads. If a decision to charge is ultimately made, the impression we are left with in an increasing number of cases is that the decision has not been informed by a thorough review of the evidence and robust application of the Full Code test but, rather, determined by the fact that the complainant is supportive of the prosecution.
A supportive complainant is of course in most cases one of the most important elements of a decision to charge, but it should not be the determining element. That should be whether the Crown’s case taken as a whole, and in light of any defence that has been indicated, has a reasonable prospect of conviction. Should the Crown lose sight of this guiding principle that has served it well for many years, it will undoubtedly preside over more costly failures such as the one it experienced in this case.
It should also be said that, whilst this was a very positive outcome for the client and his family, it does nothing to diminish the stress and anxiety that was caused to them by his being under investigation for 5 years and then being charged on such manifestly weak evidence. We can only hope that rulings such as this one will give the CPS pause for thought before continuing on their current trajectory of pushing to charge wherever possible, irrespective of the prospects of success.
The client in this case was represented by Sandra Paul, Partner and Ed Jones, Senior Associate, both members of the criminal litigation team at Kingsley Napley. Shauna Ritche of Mayfair Place Chambers was instructed counsel.