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Use of local information to ensure good quality decision-making

  • Introduction
  • Understanding local concerns
  • Making information about local concerns available to CPS decision-makers
  • How can information about local concerns be used?
  • Conditional Cautions for adults
  • Youth cases
  • Assistance to the court when sentencing (including ancillary orders)

Introduction

This guidance supports the effective delivery of Core Quality Standard (CQS) 12 and sets out:

  • how CPS Areas can understand local community concerns; and
  • why and how CPS prosecutors should be taking local information about crime and disorder concerns into account when making case-work decisions.

Understanding local concerns

There are a variety of methods by which CPS Areas may understand local crime and disorder concerns:

through priorities identified by the police;

  • through priorities identified and published by Community Safety Partnerships in their strategic plans;
  • through CPS consultation mechanisms such as Local Scrutiny and Involvement Panels; and
  • through direct engagement by CPS with communities (although this work should complement, not replace, the gathering of information through external sources).

The identification of local crime and disorder priorities and direct consultation with the community is undertaken by other agencies under a range of initiatives. Tapping into this intelligence and the existing mechanisms is an effective route for the CPS to obtain good information whilst minimising the resource required.

Making information about local concerns available to CPS decision-makers

Local arrangements should be made to ensure that information about local crime and anti-social behaviour priorities is communicated to prosecutors. Such arrangements may include police officers being asked to attach relevant Community Impact Statements (CIS) onto the case file and/or highlighting on the MG3 and/or MG5 the fact that a case relates to a community concern.

The most beneficial approaches are likely to be those which attach the local information to relevant case files so that the information is immediately accessible and becomes a routine aspect of reviewing case files.

Other options to communicate community priority information to prosecutors include:

  • communicating information through email as and when priorities are identified;
  • saving information on local priorities on a shared computer drive accessible to staff;
  • disseminating copies of neighbourhood profiles or a briefing on neighbourhood policing priorities to prosecutors; and
  • placing hard copies of briefing or neighbourhood profiles on charging suites.

How can information about local concerns be used?

CQS 12 states that: we will engage with communities so that we are aware of their concerns when we make decisions. Standard 12.4 specifically states that we will work with the police and local authorities to respond to the priorities that emerge in neighbourhoods and communities, such as anti-social behaviour. In order that CPS can deliver on these commitments, we need to have and make use of (and be able to demonstrate that we have done so) robust information about local crime and anti-social behaviour concerns.

This commitment will manifest itself in relation to CPS decision-making in the following ways:

When considering whether a prosecution is in the public interest

The 6th edition of the Code for Crown Prosecutors (February 2010) states (at para 4.16r) that one of the factors tending in favour of a prosecution is if a prosecution would have a significant positive impact on maintaining community confidence.

This might mean that in one Area a suspect may be diverted from prosecution by the CPS, but in another, for the same offence the suspect may be charged. Both these approaches may be correct applications of the Code where paragraph 4.16r is engaged.

The required element of consistency comes in the decision-making process rather than in the decisions themselves. So, provided that the decision taker follows the stages of the Full Code Test in the right order and properly attributes appropriate weight to the relevant evidential and public interest considerations, it is permissible for different prosecutors to arrive at different decisions.

Example: An 18 year old female was arrested and issued with a direction to leave and remain out of an Alcohol Free Zone for 48 hours after engaging in anti-social behaviour at the bus station involving youths drinking alcohol and causing a nuisance. Less than 24 hours later she was found again in the bus station. Rather than being the subject of a further order to leave, she appeared before local magistrates and was convicted, receiving a total of £240 in fines.

Conditional Cautions for adults

The impact on the community of a particular type of offending is a factor which the prosecutor should take into account when deciding whether it is in the public interest to prosecute or recommend some other course of action. By having a greater understanding of the concerns of the local community, prosecutors will be better able to tailor diversion and conditional cautions to meet the concerns of the public.

The use of conditional cautions is governed by sections 22 to 27 of the Criminal Justice Act 2003, and subsequent Codes of Practice and the Directors Guidance. The conditions attached to a conditional caution should either be rehabilitative, reparative or punitive (The Police and Justice Act 2006 allowed for the introduction of punitive Conditional Cautions, including the issue of a financial penalty. These are being piloted in 5 areas and commenced from the 26 January 2010. The maximum financial penalty condition that can be offered is £150. This can be reduced to £100 if the offender is in receipt of state aid or there is substantial mitigation . Punitive conditions should only be used where there are no reparative or rehabilitative conditions or where they are required to provide a proportionate response to offending behaviour.). Reparation can take the form of compensation being paid to the victim of the crime, or alternatively, if the crime was one that affected the entire community, such as graffiti, the reparation could be cleaning up the graffiti or compensation payable to a local charity that works in the community.

This issue is specifically addressed in the Directors Guidance on Conditional Cautioning (the Directors Guidance) (November 2009):

4.5 Public interest factors to determine whether a Conditional Caution should be offered:

  • Where the evidential test is met, the Crown Prosecutor must be satisfied that while the public interest justifies a prosecution, the interests of the victim, community and/or needs of the offender may nevertheless be better served by the offender complying with suitable conditions aimed at reparation, rehabilitation or punishment. The Crown Prosecutor must also be satisfied that a prosecution will continue to be necessary should the offer of a Conditional Caution be declined or the offender fails to comply with the conditions

Knowledge of local schemes, such as anger management or addiction counselling, will assist prosecutors in identifying the most appropriate condition to be attached to a conditional caution. This is addressed in the Directors Guidance at paragraph 5.2-5.18.

With greater knowledge of the impact of the offence on the community, the prosecutor will be able to make a more informed decision about the most appropriate diversion.

Example: The volume of kerb crawling was of concern to a local community. Conditional cautions have proved effective in dealing with this, as has prosecutors reminding the courts of their power to disqualify drivers when convicted of kerb crawling. As part of their conditional cautions, individuals have attended a Change course, which is a one day re-education programme for kerb crawlers that costs £200 each. None of these men have been caught again, and the course has raised a significant sum for community use on items such as mini bus hire and building play areas for local primary schools. Complaints from residents about kerb crawling have also fallen.

Youth cases

In youth cases, consideration also needs to be given to those factors that are relevant to youth offenders when deciding whether it is in the public interest to prosecute.

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 consider the interests of the youth when deciding whether it is in the public interest to prosecute.

Prosecutors should not avoid a decision to prosecute simply because of the suspects age. The seriousness of the offence or the youths past behaviour is very important.

Prosecutors must also consider what course of action will meet the statutory duty to prevent offending. Prosecutors should ensure that a youth is prosecuted through the courts only when they are sure that the public interest factors in favour of prosecution outweigh the public interest factors against prosecution.

The diversion regime for youth offenders is set out in the Reprimand and Final Warning Scheme (section 65 Crime and Disorder Act 1998). The ability to take into account local information about crime and disorder concerns is already addressed within the Reprimand and Final Warning Scheme. One of the general aggravating factors to be taken into account when determining whether a youth should be diverted or not is:

  • the offence, though minor, is prevalent in the local area - as identified in the local crime audit, specified in the youth justice plan or specifically agreed with the CPS to warrant a more serious response (Final Warning Scheme Guidance for the Police and Youth Offending Teams Home Office and Youth Justice Board 2002).

For further information and guidance in respect of the prosecution of youths, prosecutors should refer to Youth Offenders Chapter in the Legal Guidance or their local Youth Specialist Prosecutor.

Assistance to the court when sentencing (including ancillary orders)

Sentencing is a decision for the courts and the prosecutor should not seek by advocacy to influence the court in favour of a particular sentence. However, the prosecution advocate has a duty to assist the court to reach its decision as to the appropriate sentence.

In R v Reynolds and others [2007] EWCA Crim 538, Latham J repeated that it was the duty of the prosecuting and defence advocates to be fully aware of the impact of the statutory provisions and to be prepared to assist the judge in that respect and to be alert to any mistakes that the judge makes in passing sentence, so that any problem can be resolved before it is too late.

Paragraph 11.1 of the Code for Crown Prosecutors states that sentencing is a decision for the Court, but that prosecutors have a duty to offer assistance to the sentencing court in reaching its decision as to appropriate sentence. Two factors that prosecutors should bring to the courts attention are:

  • where appropriate, evidence of the impact of the offending on a community; and
  • any relevant statutory provisions relating to ancillary orders (such as anti-social behaviour orders (ASBOs)).

Furthermore, the Attorney Generals Guidelines on Acceptance of Pleas and the Prosecutors Role in the Sentencing Exercise (the Attorney Generals Guidelines) (paragraph B4) states that (emphasis added):

  • The prosecution advocate represents the public interest, and should be ready to assist the court to reach its decision as to the appropriate sentence. This will include drawing the courts attention to:
  •  any victim personal statement or other information available to the prosecution advocate as to the impact of the offence on the victim;
  • where appropriate, to any evidence of the impact of the offending on a community;
  • any statutory provisions relevant to the offender and the offences under consideration;
  • any relevant sentencing guidelines and guideline cases; and
    the aggravating and mitigating factors of the offence under consideration. The prosecution advocate may also offer assistance to the court by making submissions, in the light of all these factors, about the appropriate sentencing range.

Awareness of local crime and anti-social behaviour concerns will ensure prosecutors are better informed about the impact of the offending behaviour on the community. This will enable prosecutors to apply for the most appropriate ancillary orders, tailoring them to ensure that the needs of the local community are addressed. Information supplied to the prosecutor by the police may be used to assist the court in assessing the appropriateness and scope of any ancillary orders, for example, the size of an exclusion zone included in an ASBO.

Example:, the CPS was made aware of local concerns relating to crimes against the Jewish community in a particular part of a city. When charging relevant offences, the CPS worked with the police to consider an application for ASBOs. When fixing the exclusion zone, the reviewing lawyer looked at the streets and the area where the individual offences were committed and also looked at the boundaries of where the Jewish community lived in relation to the main arterial routes into and out of the city. The boundary was drawn (and approved by the court) to protect that community from future similar behaviour.

A Plea and Sentencing Document should be provided by the prosecution in both Crown Court and magistrates' courts cases, where it is likely to assist the court because the issues are complex or unfamiliar. The proforma (which is available in Infonet forms section: Form NFP/PS 1) already has a prompt for prosecutors to consider Ancillary Orders specific to the offence. For example, for the offence of criminal damage, the suggested Ancillary Order is compensation.

Paragraph B5 of the Attorney Generals Guidelines states:

In all cases, it is the prosecution advocates duty to apply for appropriate ancillary orders, such as anti-social behaviour orders and confiscation orders. When considering which ancillary orders to apply for, prosecution advocates must always have regard to the victims needs, including the question of his or her future protection.

To impose a deterrent sentence a court needs very specific information. This is addressed in the case of R v Oosthizen (2006) 1 Cr.App.R.(S.) 73 CA.

In the absence of statistics or other evidence identifying the particular prevalence of a crime in a particular area, even a judge with experience of that area should not assume that prevalence was more marked in that area than nationally.