Richard Dawson, instructed by Urfan Mahmood at Shafi Solicitors, by simple application of the Code for Crown Prosecutors, together with the Interim CPS Case Review Guidance in response to the Covid-19 crisis, secured an amazing result for Mr S.
Mr S was originally charged with making a threat to kill, contrary to s.16, Offences Against the Person Act 1861, in the context of a domestic disturbance.
Following his first appearance at Crown Court, the CPS were persuaded to refer the case back to the Police for Mr S to be formally cautioned. Thereafter, the Prosecution offered no evidence and a not guilty verdict was recorded.
The Code for Crown Prosecutors requires prosecutors to consider whether a prosecution is required, or should be continued, in the public interest at every stage – and particularly when reviewing a case which has already been charged, under the continuing duty to review, particularly where there is a change of circumstances.
The Interim CPS Case Review Guidance in response to the Covid-19 crisis provides prosecutors with additional guidance as to their application of the public interest test, given the impact of Covid-19 on the Criminal Justice System. It clarifies prosecutors’ review responsibilities under the Code for Crown Prosecutors in the context of the Covid-19 pandemic.
The Covid-19 outbreak presents an unprecedented challenge for the Criminal Justice System in England and Wales. The scale and seriousness of the situation has created significant difficulties for the criminal justice process.
The pandemic has already had a significant impact on the Criminal Justice System, particularly on case progression. The majority of ongoing trials had to be stopped because of problems over the attendance of victims, witnesses, defendants, advocates and jurors. Many hearings have been adjourned to ensure compliance with government guidance on social distancing. The crisis will have a long-term impact on the Criminal Justice System, particularly in relation to the expanding pipeline of cases waiting to be heard.
The Code for Crown Prosecutors requires prosecutors to consider a number of questions, so as to identify and determine the relevant public interest factors in each case. One of these questions is: “Is prosecution a proportionate response?”
When reviewing a case and considering this question, prosecutors should do so in the context of the ongoing impact on the Criminal Justice System of the Covid-19 pandemic. In particular, prosecutors should note:
– The crisis is producing an expanding pipeline of cases waiting to be heard.
– Criminal proceedings and case progression are likely to be delayed. Significant delay may impact adversely on victims,
witnesses and defendants – and in some cases may reduce the likelihood of a conviction.
– Each case that is introduced into the system, or kept in the system, will contribute to the expanding pipeline and delay.
When considering whether prosecution, or continuing proceedings, is a proportionate response, this factor must be weighed with all other relevant public interest factors, such as the seriousness of the offence and the circumstances of and the harm caused to the victim, to form an overall assessment of the public interest.
Each case must be decided on its own facts and merits – but a variety of factors are likely to be relevant to determining what is in the interests of justice, not only for victims and witnesses but also for each suspect or defendant.
One of the relevant factors to be considered by prosecutors is whether an out of court disposal may be an appropriate response to the offender and/or seriousness and consequences of the offending.
Given that making a threat to kill is always deemed a particularly grave offence, typically resulting in a significant custodial sentence on conviction, Mr S was perhaps fortunate to be cautioned, as an alternative to prosecution. However, this case demonstrates the need for defence lawyers always to be positive and proactive, in order to secure the best possible outcome for their clients – and particularly so in these unprecedented times.
Prosecutors will engage with defence representatives and, likewise, should be proactive in discharging their ongoing duty to review the evidential and public interest stages of the Code for Crown Prosecutors test.
The Covid-19 pandemic should be considered to be a “change in circumstances”. Prosecutors should therefore decide what, if any, impact this change in circumstances has on the public interest in continuing the prosecution. The public interest may lie with continuing the prosecution. In some cases, however, prosecutors may be persuaded to:
– Discontinue proceedings or offer no evidence.
– Offer an out of court disposal.
– Accept a guilty plea to some, but not all charges; or to a less serious offence.
Richard Dawson is an expert trial lawyer, specialising in serious crime, regulatory offending and professional discipline.
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