Prosecutors to prioritise serious cases in managing impact of Coronavirus pandemic

Although lawyers must always assess whether a prosecution is in the public interest, new guidance issued by the Crown Prosecution Service (CPS) asks for extra consideration of the impact of the pandemic when deciding the most proportionate response in every case. Lawyers will review both new and existing cases on their own merits and then consider every available course of action including community resolution.

It could also mean accepting a guilty plea to a different offence if prosecutors are satisfied that a sentence which meets the seriousness of the offending could be passed. This will not affect the most serious or violent types of crime.

Max Hill QC, Director of Public Prosecutions, said: “We know very well the impact crime can have on people’s lives, so we want the public to be confident that, even in these very difficult circumstances, justice will be done. Our very function is to prosecute, but we cannot ignore the unprecedented challenge facing the criminal justice system.”

Hill continued: “We must focus on making sure the most dangerous offenders are dealt with as a priority as we adapt to challenging circumstances. In terms of less serious cases, it's right that we consider all options available when weighing up the right course of action. This will only relate to a very small amount of cases and offences relating to COVID-19 will remain an immediate priority. Anybody jeopardising the safety of the public will face the full force of the law.”

Code for Crown Prosecutors

The interim guidance, which clarifies how to apply the Code for Crown Prosecutors during the current public health emergency, follows on from new Interim Charging Guidance published jointly by the National Police Chiefs' Council and the CPS only last week. This asked police to prioritise cases they're considering for charge and focus on dealing with the most dangerous offenders. Specifically, it's designed to prioritise the most serious cases at a time when the courts are not able to operate at normal capacity.

Prosecutors have always had to consider whether criminal charges are in the public interest as part of their decision making. The new guidance asks that the pressures COVID-19 is placing on the system are given special consideration during the pandemic.

The aforementioned Code for Crown Prosecutors is the guidance used by prosecutors to decide whether criminal charges can be brought.

There are two stages to the Code test. The first is whether there's sufficient evidence to mean that there is a realistic prospect of conviction. The second is if a prosecution is in the public interest. If the evidential stage isn't met, the issue of public interest is not considered and the case cannot proceed, no matter how serious the crime.

The Code 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?’

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 in order to form an overall assessment of the public interest.

Interests of justice

Each case must be decided on its own facts and merits, but factors that are likely to be relevant to determining what's in the interests of justice, not only for victims and witnesses, but also for each suspect and defendant are as follows:

• Whether an out of court disposal (eg caution) 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.