Will Coronavirus Be a ‘Get out of Jail’ Card?

Before a prosecution is commenced, the Crown Prosecution Service must apply two distinct tests.

The first is whether there is sufficient evidence to provide a realistic prospect of conviction; If not, the case does not proceed further.

If there is sufficient evidence, the second question must be answered, namely whether a prosecution is in the public interest.

To assess the public interest, prosecutors must consider seven different factors:

a) How serious is the offence committed?

• The more serious the offence, the more likely it is that a prosecution is required.
• When assessing the seriousness of an offence, prosecutors should include in their consideration the suspect’s culpability and the harm caused, by asking themselves the questions at b) and c).
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b) What is the level of culpability of the suspect?

• The greater the suspect’s level of culpability, the more likely it is that a prosecution is required.
• Culpability is likely to be determined by:

a. the suspect’s level of involvement;
b. the extent to which the offending was premeditated and/or planned;
c. the extent to which the suspect has benefitted from criminal conduct;
d. whether the suspect has previous criminal convictions and/or out-of-court disposals and any offending whilst on bail or whilst subject to a court order;
e. whether the offending was or is likely to be continued, repeated or escalated;
f. the suspect’s age and maturity (see paragraph d below).

• A suspect is likely to have a much lower level of culpability if the suspect has been compelled, coerced or exploited, particularly if they are the victim of a crime that is linked to their offending.
• Prosecutors should also have regard to whether the suspect is, or was at the time of the offence, affected by any significant mental or physical ill health or disability, as in some circumstances this may mean that it is less likely that a prosecution is required. However, prosecutors will also need to consider how serious the offence was, whether the suspect is likely to re-offend and the need to safeguard the public or those providing care to such persons.

c) What are the circumstances of and the harm caused to the victim?

• The circumstances of the victim are highly relevant. The more vulnerable the victim’s situation, or the greater the perceived vulnerability of the victim, the more likely it is that a prosecution is required.
• This includes where a position of trust or authority exists between the suspect and victim.
• A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public.
• It is more likely that prosecution is required if the offence was motivated by any form of prejudice against the victim’s actual or presumed ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity; or if the suspect targeted or exploited the victim, or demonstrated hostility towards the victim, based on any of those characteristics.
• Prosecutors also need to consider if a prosecution is likely to have an adverse effect on the victim’s physical or mental health, always bearing in mind the seriousness of the offence, the availability of special measures and the possibility of a prosecution without the participation of the victim.
• Prosecutors should take into account the views expressed by the victim about the impact that the offence has had. In appropriate cases, this may also include the views of the victim’s family.
• However, the CPS does not act for victims or their families in the same way as solicitors act for their clients, and prosecutors must form an overall view of the public interest.

d) What was the suspect’s age and maturity at the time of the offence?

• The criminal justice system treats children and young people differently from adults and significant weight must be attached to the age of the suspect if they are a child or young person under 18.
• The best interests and welfare of the child or young person must be considered, including whether a prosecution is likely to have an adverse impact on their future prospects that is disproportionate to the seriousness of the offending.
• Prosecutors must have regard to the principal aim of the youth justice system, which is to prevent offending by children and young people. Prosecutors must also have regard to the obligations arising under the United Nations 1989 Convention on the Rights of the Child.
• Prosecutors should consider the suspect’s maturity, as well as their chronological age, as young adults will continue to mature into their mid-twenties.
• As a starting point, the younger the suspect, the less likely it is that a prosecution is required.
• However, there may be circumstances which mean that, notwithstanding the fact that the suspect is under 18 or lacks maturity, a prosecution is in the public interest. These include where:

1. the offence committed is serious;
2. the suspect’s past record suggests that there are no suitable alternatives to prosecution; and
3. the absence of an admission means that out-of-court disposals that might have addressed the offending behaviour are not available.

e) What is the impact on the community?

• The greater the impact of the offending on the community, the more likely it is that a prosecution is required.
• The prevalence of an offence in a community may cause particular harm to that community, increasing the seriousness of the offending.
• Community is not restricted to communities defined by location and may relate to a group of people who share certain characteristics, experiences or backgrounds, including an occupational group.
• Evidence of impact on a community may be obtained by way of a Community Impact Statement.

f) Is prosecution a proportionate response?

• In considering whether prosecution is proportionate to the likely outcome, the following may be relevant:

a. The cost to the CPS and the wider criminal justice system, especially where it could be regarded as excessive when weighed against any likely penalty. Prosecutors should not decide the public interest on the basis of this factor alone. It is essential that regard is also given to the public interest factors identified when considering the other questions in paragraphs 4.14 a) to g), but cost can be a relevant factor when making an overall assessment of the public interest.
b. Cases should be prosecuted in accordance with principles of effective case management. For example, in a case involving multiple suspects, prosecution might be reserved for the main participants in order to avoid excessively long and complex proceedings.

g) Do sources of information require protecting?

• In cases where public interest immunity does not apply, special care should be taken when proceeding with a prosecution where details may need to be made public that could harm sources of information, ongoing investigations, international relations or national security. It is essential that such cases are kept under continuing review.

Does the Coronavirus emergency change this test?

Revised guidance issued on 14th April 2020 to prosecutors states the following:

“One of these questions is f): 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, 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.

Prosecutors should also note the Interim CPS Charging Protocol, which provides guidance on the handling of charging decisions during the Covid-19 crisis.

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 factors that 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 and defendant are:

• Whether an out of court disposal may be an appropriate response to the offender and / or seriousness and consequences of the offending.
• Whether a guilty plea to some, but not all charges, or to a less serious offence, would enable the court to pass a sentence that matches the seriousness of the offending.
• The length of time a suspect / defendant has spent on remand in custody; and any likely period of remand prior to trial.

The age and maturity of the suspect / defendant: prosecutors should have regard to CPS guidance on Youth Offenders.

All cases involving youth offenders must be dealt with expeditiously and avoid delay, which has at its core the principle that there is little point in conducting a trial for a young offender long after the alleged commission of an offence when the offender will have difficulty in relating the sentence to the offence. To maximise the impact on the youth offender, the case must be dealt with as soon as possible.

Where appropriate, prosecutors should engage with defence representatives.”

What does this mean in practice?

In short, we expect many cases that would ordinarily have been prosecuted, to be disposed of differently. This does not necessarily mean that there will be no sanction, but it does increase the likelihood of a out of court disposal.

Of course, a sanction should only be accepted if there is guilt, but where that can be established, careful thought will need to be given to the proper approach, particularly in respect to early admission.

We can expect this process to be subject to a great deal of complex negotiation.

All of our solicitors are well versed in this aspect of law and are ready to secure the most appropriate outcome for all of our clients, but you must seek advice at the earliest possible opportunity.

How can we help?

If you need specialist advice, then get in touch with any member of our vastly experienced Criminal Defence team, for assistance with any criminal law related matter.

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Mr John Stokes (John.Stokes@danielwoodman.co.uk),
Mr Anthony Pearce (Anthony.Pearce@danielwoodman.co.uk) or
Mr Daniel Woodman (Daniel.Woodman@danielwoodman.co.uk).