New guidance for prosecutors will make the slow grind of our legal system worse
In this interview with Kate Beaumont of Lexis®PSL Corporate Crime, David Sleight discusses the revised ‘Code for Crown Prosecutors’.
When presenting the draft code, the Crown Prosecution Service (CPS) confirmed that it is periodically revised so that it reflects legal and social developments, as well as changes in prosecution policy and practice. Director of Public Prosecutions (DPP), Alison Saunders, confirmed that ‘it is vital that defendants and complainants have trust in the criminal justice system and the public has confidence in the outcome of court cases’.
The reality is that the updated code has been heavily influenced by recent high-profile cases where disclosure failings have led to the collapse of a number of rape and sexual assault trials.
Saunders who has been at the sharp end of criticism for presiding over such failures has blamed the ‘explosion of digital evidence’ which has made it more onerous for the police and prosecutors to identify, review and disclose all material that may undermine the prosecution case or assist the defence.
Key changes include new requirements to consider disclosure evidence when considering if there is sufficient evidence to charge a suspect. Paragraph 4.8 of the new code sets out the requirements on prosecutors to consider any ‘examined and unexamined material in the possession of the police, and material that may be obtained through further lines of inquiry’. The theory being that by front loading the disclosure process, it will allow deficiencies in evidence to be identified at an early stage, dispensing of the need for protracted litigation and last-minute disclosure.
There is a focus on the recovery of proceeds of crime. The extent to which the suspect has benefited from criminal conduct is a new factor to be considered when assessing culpability under the public interest test. There is additional emphasis on retrieving ‘benefit’ from crimes throughout the new code. The court’s ability to make a confiscation order also features as a consideration in the ‘selection of charges’, ‘mode of trial’, and ‘accepting pleas’ sections.
The new code has more rigorous conditions placed on the application of the threshold test (i.e. the justification for immediate charging decisions in serious cases where there are substantial grounds to object to bail). Guidance on how to apply the threshold test has been simplified and updated. The aim being to make sure it is only being used where completely necessary and to avoid cases being charged prematurely.
An additional change is made in relation to potential abuse of process arguments where, prosecutors should not start or continue a prosecution where their view is that it is highly likely that a court will rule that a prosecution is an abuse of its process, and stay the proceedings. Previously reference was made to a prosecution ‘which would be regarded by the courts as oppressive or unfair’.
The requirement of prosecutors to consider any ‘examined and unexamined’ material pre-charge could have significant impact on the workload of both the police and the CPS. This is going to have a knock-on effect on the amount of time police investigations take and the amount of material that will need to be considered pre-charge even
in ‘clear cut’ cases. While it is in all parties’ interests that evidence which may undermine the prosecution’s case and assist the defence is identified at an early stage, this additional pre-charge work is likely to put further pressure on a beleaguered CPS and increase the amount of time it takes for charging decisions to be made.
Suspects are already waiting for months, and sometimes years, for the police to carry out forensic analysis of mobile phones, computers and other electronic devices. The requirement for the CPS to consider all such material before deciding on charge will elongate the process still further.
In cases where it is believed there may be exculpatory evidence which has yet to be gathered by the police (perhaps contained on a complainant’s mobile phone or other electronic device), it may well be worth highlighting the requirements on the prosecution to consider such material at an early stage.
Of course, there are downsides in doing so, not least the timing issues mentioned above and the fact that practitioners will have to rely on the views of their client (and their own judgement) as to whether it is likely that helpful material does in fact exist on such devices. However, given the obligations on the prosecution to review such material, holding
them to account and ensuring that a proper review takes place may make the difference between your client being charged or not.
While a shift in policy to encourage prosecutors to carefully review cases and exculpatory evidence at an early stage is a good idea in principle, it is yet another example of a well-intentioned policy change that has little or no consideration as to what is happening on the ground.
Increased numbers of complaints and investigations, particularly in relation to serious sexual offences, has led to prosecutors struggling to cope with the backlog of pre-charge cases. Amendments in 2017 to the Police and Criminal Evidence Act 1984 as it relates to police bail were supposed to speed up investigations and reduce the amount of time
suspects were held in limbo waiting for a charging decision to be made. In fact, what has happened is the complete opposite, with suspects being ‘released under investigation’ for months on end without any decision being made.
Without an increase in resources—including the numbers of specialist prosecutors available to consider these highly sensitive cases—suspects and victims alike will continue to suffer substantial prejudice as cases stagnate and charging decisions are booted off into the long grass.
This blog was first published on Lexis®PSL Corporate Crime on 14 November 2018.
For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.
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