COVID-19 EXPERT LEGAL INSIGHTS

COVID-19: Distinguishing crime

3 April 2020

The National Police Chief Council (NPCC) has published guidance in conjunction with the CPS titled “Interim CPS Charging Protocol – Covid-19 Crisis Response". The document provides guidance on how cases will be investigated and prosecuted by the Police and the Crown Prosecution Service.
 

The guidance creates three categories of cases:

(a) Immediate - custody and all Covid-19 related cases.
(b) High priority cases - non-custody bail cases.
(c) Other cases - released under investigation or no arrest required.

The document appears to have introduced a concept of "seriousness" into police operational decisions, as a distinction is drawn between offences that are considered to be “serious” with those offences that are not specifically described as “serious.”

The most significant aspect of the guidance is what it does not say. There is no guidance contained in the document as to what is a "serious" offence or not. Whilst some offences are specifically described as being “serious”, it is not overtly stated that some offences are “non serious”. 

Clearly “serious” is a highly subjective term and is likely to cause confusion within the Criminal Justice System. For example, what is a "serious sexual offence and abuse of children" case as opposed to a non-serious sexual offence and abuse of children case? In policing terms, until this document was published, a non-serious sexual offence and abuse of children case did not exist.

The document raises more questions and provides few answers. One may be forgiven for questioning: when does a case of violence become a “serious” case of violence? This document does not provide any meaningful assistance on how the Police and prosecutors are supposed to apply the apparent test of "seriousness". For example, are the police obliged to take into account the complainant's view as to whether an offence is serious, or is there going to be some further objective criteria that will be applied to each offence type to provide guidance as to whether or not a particular offence is deemed "serious"?

There is a significant lack of clarity as to how criminal cases are to be distinguished, which informs how they are then to be investigated and/or prosecuted. What does appear to be clear is that the guidance in this document reflects the resourcing issues that the police and prosecutors face.  The reality is that the police and CPS were significantly under resourced before the COVID-19 crisis. Losing officers to illness and in order to enforce the quarantine regulations has meant that there are fewer officers to respond to urgent calls to the police and to investigate outstanding enquiries. This document highlights that police resourcing problem is so acute that they are willing to create distinctions where they did not previously exist. Hence, the police have resorted to distinguishing crime rather than extinguishing crime.

Further information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.

 

About the authors

Nick Dent is an senior associate in the criminal litigation team with experience in a broad range of general crime and white collar crime cases. He has significant experience at handling criminal cases from the interview under caution to the conclusion of a case.  He frequently advises individuals who are under investigation or immediately following their arrest and is acutely aware of the emotional distress and pressure that this can entail. Nick has particular experience in acting on behalf of people who are in the public eye whose reputation and livelihood are at stake.

John Harding acts as Legal Counsel in the criminal litigation team and represents individuals in relation to all areas of crime including police station advice, specialising particularly in relation to allegations of serious assaults, offences of a sexual nature and those relating to child abuse/abuse of positions of trust.

 

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