A step too far – a warning for Private Prosecutors
January was certainly a month of industry for the Director of Public Prosecutions Keir Starmer and the CPS. In addition to the announcement of plans to increase the number of HMRC cases the CPS takes on, the month saw the publication of the new Code for Crown Prosecutors (the Code).
The 7th edition of the Code was published on 28 January 2013 and promises to be a shorter and streamlined version of its predecessor. The evidential test has shed much of its post-Christmas weight and now focusses on three main principles; the admissibility, reliability and credibility of evidence. The long ‘checklist’ of factors which appeared in the former version has been removed.
The most notable change, however, comes in the form of the inclusion of a ‘proportionality’ test which now appears in the public interest stage of the Code. Making something of a come back, proportionality has not been expressly referred to in the Code since 1992. Prosecutors should now consider “whether prosecution is proportionate to the likely outcome” and in doing so may bear in mind factors such as the cost to the CPS and wider criminal justice system and the likely length and complexity of a trial. It is noted that a decision not to proceed with a prosecution should not be made on the basis of cost alone, however its inclusion within the Code is welcome news given recent press relating to trials of minor matters racking up legal bills of hundreds of thousands of pounds.
Starmer hopes that the re-introduction of proportionality in the Code will encourage a common sense approach among prosecutors and police and ensure that “the right cases are prioritised from the start”. Whether the introduction of the ‘proportionality’ test leads to a greater use of out of court disposals such as cautions and conditional cautions remains to be seen.
Concerns have been raised over the increased inappropriate use of cautions in serious cases and this is currently under review. The publication of guidance which marries the concepts of proportionate charging decisions and appropriate use of cautions would certainly be of value to police officers and prosecutors alike who are tasked with making these decisions.
The receipt of sound advice at the police station and pre-charge stage of an investigation remain key and one can certainly foresee instances when representations on proportionality (with reference to the Code) may have a positive effect on the final outcome of the case.
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