New guidance for prosecutors will make the slow grind of our legal system worse

1 November 2018

As Alison Saunders handed over the keys to the office of the director of public prosecutions to Max Hill, QC, yesterday, her parting gift was to unveil an updated code for crown prosecutors.

The code, which came into force last week, sets out the general principles that prosecutors must consider when deciding to charge a suspect.

Key changes include the need to consider disclosure evidence pre-charge, a focus on the recovery of proceeds of crime and more rigorous conditions placed on the application of the threshold test, namely, the justification for immediate charging decisions in serious cases.

The updated code has been heavily influenced by recent prominent cases where disclosure failings have led to the collapse of rape and sexual assault trials.

Ms Saunders, who has been criticised sharply for presiding over such failures, has blamed the “explosion of digital evidence”, which has certainly made it more onerous for the police and prosecutors to identify, review and disclose all material which may undermine the prosecution case or assist the defence.

The updated code attempts to address this problem by forcing prosecutors to consider any “examined or unexamined material in the possession of the police” prior to a charging decision being made. The theory being that front loading the disclosure process will allow deficiencies in evidence to be identified at an early stage, dispensing with the need for protracted litigation.

While it is in all parties’ interests that such evidence is identified at an early stage, this additional pre-charge work is likely to put yet more pressure on a beleaguered Crown Prosecution Service and increase the 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 charges will elongate the process still further.

It is another example of how a well-intentioned policy change 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 last year to the Police & Criminal Evidence Act 1984 regarding 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.

The complete opposite has occurred, 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 the wheels of justice continue to grind excruciatingly slowly.

It may be a new code for the incoming director of public prosecutions, but the same old problems persist.

First published in The Times' Brief, 1 November 2018

Further information

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