Homicide Cases - Guidance on CPS service to bereaved families
- Introduction
- Principle
- Deaths in custody cases
- CPS service to bereaved families
- Liaison with the police
- Purpose of the Meeting
- Who should attend?
- Practicalities
- Meeting following a charging decision
- Explaining the purpose of the VPS scheme
- Meeting with Trial Advocate
- Meeting if charges are discontinued or substantially altered, or left to lie on file
- Meeting following conviction
- Meeting following acquittal or conviction on a less serious charge
- Meeting following sentence
- Meeting following leave to appeal being granted
- Meeting following reconsideration of a case after acquittal ('double jeopardy')
- Local road traffic protocols
Introduction
The CPS launched the Victim Focus Scheme (VFS) on 1 October 2007. The scheme provides bereaved families with the opportunity to meet the CPS prosecutor post charge in homicide cases heard in the Crown Court, to discuss processes and procedures and also to have their voice heard at the point of sentence, through the making of a Victim Personal Statement (VPS).
In addition to the VFS, CPS Merseyside, Northumbria and South Wales have been operating a pilot scheme whereby bereaved families have the opportunity to meet with the CPS prosecutor post acquittal or where the defendant has been convicted of a lesser charge to ask any questions that they may have in relation to the trial process and its outcome.
A compliance review of the VFS conducted in March 2010 recommended that the scheme be extended to include post-acquittal meetings, road death cases heard in the Magistrates' Court and appeal cases to the Court of Appeal. All three proposals were supported by all those interviewed as part of the review, many of whom were already operating elements of the extended scheme.
It has also been agreed to extend the scheme to cover the offer of a meeting in acquittal cases re-reviewed by the CPS under Part 10 of the Criminal Justice Act 2003 ('double jeopardy' cases).
In addition, the VFS compliance review identified the need to brigade all service delivery requirements relating to cases involving a fatality under one heading to save confusion amongst practitioners about which part of the service is delivered under which initiative. This legal guidance therefore covers all aspects of our service to bereaved families commencing with explaining the charging decision through to supporting bereaved families where cases progress to the Court of Appeal. The enhanced pre-charge procedures for holding meetings in deaths in custody cases will continue to apply.
The new service will come into effect on 12th December 2011 and should be applied immediately to all qualifying cases.
Principle
Prosecutors will offer to meet bereaved families in homicide cases at important stages of the CJS process to explain the anticipated progress of the case, what is expected to happen at each court hearing and the possible sentences available for the offences charged. The term 'family' includes relatives and partners (including same sex partners).
The categories of offence ("qualifying offences") are:
- murder;
- manslaughter;
- corporate manslaughter
- familial homicide;
- causing death by dangerous driving;
- causing death by careless driving while unfit through drink or drugs;
- causing death by careless or inconsiderate driving;
- causing death by driving whilst unlicensed, disqualified or uninsured;
- aggravated vehicle taking where death is caused
The above offences must have been committed in England and Wales to qualify for the scheme.
Deaths in custody cases
The enhanced pre-charge procedures for holding meetings in deaths in custody cases should continue to be followed, but prosecutors should comply with this guidance in cases where a qualifying charge (above) is brought.
CPS service to bereaved families
Paragraph 7.8 of the CPS Core Quality Standards confirms that "in cases involving a death, prosecutors offer to meet the victim's family from an early stage to explain how the case will be handled and what is expected to happen at each court hearing".
This guidance sets out the minimum standard of service to bereaved families. Areas/Divisions should not feel constrained from doing more if it is necessary to do so, having regard to the particular circumstances of the case.
Meetings will be offered in all qualifying cases, unless there are very exceptional reasons not to do so - it is expected that these will normally relate to issues of security and safety. In such cases, the decision not to offer a meeting must be made by the CCP and the reasons for doing so endorsed clearly on the file.
In every case, communication should be by letter, sent via the FLO (see below), and care should be taken to ensure that all correspondence is appropriately personalised and addressed to the correct individual/s.
Wherever possible the same prosecutor (ideally the reviewing lawyer) should be allocated throughout the life of the case and should be present at all relevant court hearings and subsequent meetings with family representatives. However, it is acknowledged that this continuity of contact for the bereaved family may not always be possible, particularly where the defendant elects, or the Magistrates direct that a case be committed to the Crown Court.
Liaison with the police
In all qualifying offences a Family Liaison Officer (FLO) will have been appointed from the outset. In all FLO deployments the FLO will be tasked to carry out research into the appropriate family member before their deployment into the family. The FLO will also act as the point of contact for communicating prosecution decisions to the family as well as taking any VPS.
It is important for the FLO to provide contact details for the bereaved family representatives and any significant differences of opinion which may exist between members of the family. This will enable the prosecutor to correctly address and personalise correspondence (as above) and consider whether they should hold separate meetings. The FLO will also be able to provide useful information in relation to the attitude of the family, whether there has been a funeral and any significant dates to avoid (e.g. birthdays, anniversaries etc).
On occasion a FLO may not have been appointed or may have been withdrawn from the family. In such cases, before considering whether to offer a meeting, the prosecutor must liaise closely with the SIO to establish the reasons why there is no FLO and whether it is appropriate for a meeting to be held. In considering matters of security the prosecutor is entitled to consider the reason why a FLO has not been appointed or has been withdrawn and whether any issues of security can be adequately addressed through other measures, such as holding the meeting at a police station. If it is decided that the meeting can be held, the family must agree to a police presence at the meeting.
If it is decided not to offer a meeting, the prosecutor should write to the family informing them of this but that they are still entitled to make a VPS to the police.
When arranging any meeting, the prosecutor should liaise with the FLO and/or SIO. Good liaison in advance will assist in preparation and reduce any potential risks. The prosecutor should liaise with the FLO / SIO to establish whether the family wish to attend and the preferred timing and location of the meeting. Enquiries should be made as to whether an interpreter is required. It is for the CPS to arrange the attendance of the interpreter.
In advance of the meeting, the FLO/SIO should forward to the prosecutor a note of the issues the family wish to discuss so that they can be dealt with as fully as possible.
Where the FLO/SIO has advised at a very early stage that the bereaved family does not require a meeting, s/he should document the reasons on the revised form BFS 1 and forward to the prosecutor. The prosecutor should then write to the named family member/s alluding to this fact, reaffirming that the offer is not time bound and enclosing a leaflet explaining the scheme. This is to ensure that the purpose of the scheme is fully explained to the bereaved family representatives.
Purpose of the Meeting
The purpose of the meeting will vary depending on the circumstances of the case and the stage of the proceedings. The particular considerations prosecutors should apply are set out in the following paragraphs of this guidance. However, at every meeting it will be important to deal with the family's concerns about the process and to instil confidence that the prosecutor is in charge of the case and is dealing with it in a competent and professional manner.
It should be made clear to the family in advance of the meeting (in correspondence) that the purpose of the meeting is not to discuss the detail of the evidence. However, it must be recognised that families are likely to ask questions pertaining to evidential or legal issues. Prosecutors should be alive to such evidential issues and when they arise, have regard to risks of prejudicing proceedings when considering how to deal with them. Some family members may be witnesses and this may substantially limit even further how much can be said in relation to the evidence.
If the family has additional information or queries about the investigation, wherever possible this should be dealt with by the FLO/SIO at the meeting. If this is not possible, it should be noted and referred to the SIO for a response.
Who should attend?
A police officer (normally the FLO) should attend the meeting. In some cases, it may also be helpful to have the SIO present, for the purposes of continuity for the family as well as for dealing with questions that the prosecutor is not in a position to answer.
Depending on the nature of the case and the reason for the meeting, it may be appropriate for the prosecutor to attend alone or with others. In some cases, it may be prudent to ensure that two prosecutors attend, preferably the prosecutor and his/her manager. A manager should always attend if the prosecutor so requests. In other cases, the trial advocate will be required to attend (e.g. meetings prior to plea or sentence) and in some cases it may also be beneficial for the allocated paralegal to attend, as they are likely to have the most regular contact with the family members at court.
Often it will only be necessary for the nominated family member to attend the meeting. There will, however, be occasions when other family members ask to be present. In these circumstances a full risk assessment must be carried out by the FLO to assess the potential risk. The number of family members attending a meeting should normally not exceed four, although the exact number will depend on the circumstances of the individual case.
The names of the proposed attendees should be obtained in advance and the nature of their relationship to the victim should be established prior to the meeting. There is always a risk that a proposed attendee may be a witness in the case; this need not preclude their attendance but it may limit what can be said.
Supporters may attend the meeting in that capacity only. The prosecutor has discretion to exclude any person from the meeting if, in all the circumstances, s/he deems it appropriate to do so.
In some cases it may be necessary to arrange more than one meeting at a particular stage. This will normally be the case where a defendant is charged with more than one qualifying offence but it may also be necessary where there is a single victim, for example, where a child has died and the parents are estranged. In cases with a single victim it should normally be possible to hold one meeting with one nominated family member.
In multiple homicide cases such as terrorist attacks or rail crashes, the same principles hold true. The prosecutor should liaise with his/her CCP, DCCP or Head of Division and work with the SIO, the Senior Identification Manager (SIM) and the Family Liaison Coordinators (FLCs) to resolve the practical challenges of holding meetings with large numbers of families.
Practicalities
Where a family live a considerable distance from the CPS office, or it is otherwise difficult for them to travel, prosecutors should consider holding the meeting at a location in England and Wales that is more convenient to the family. This would usually be at a local CPS office or police station.
Meetings at the family home should be avoided but are not excluded where other arrangements are impractical. However, prosecutors should be satisfied that it has been risk assessed and should liaise with the police (FLO or SIO as appropriate) in this regard.
One sensible means of avoiding unnecessary travel is to arrange a meeting on the same day as the court familiarisation visit arranged by the Witness Service. This can be particularly helpful in cases where the family reside abroad and may be limited to travelling only once before the trial commences.
Meetings are normally restricted to locations in England and Wales. Where it is considered reasonable and practicable to hold a meeting outside England and Wales, the prosecutor must seek the approval of their CCP/DCCP/Head of Division with the final decision on foreign travel being taken by the Head of International Division. The FLO must seek the approval of the SIO.
The Direct Communication with Victims guidance provides considerable information on setting up and holding meetings with victims, including health and safety issues.
A contemporaneous note of every meeting should be taken. The notes should be added to the file record on COMPASS. Prosecutors are reminded that any such notes may be disclosable.
Meeting prior to or following a charging decision
Either a CPS prosecutor or a police investigator will offer to meet with the bereaved family to explain any decision not to charge. In deciding whether a prosecution is required in the public interest, prosecutors are reminded that they should take into account any views expressed by the victim or (in homicide cases), the victim's family regarding the impact that the offence has had - paragraph 4.12(c) of the Code for Crown Prosecutors.
Whether it is the police or the CPS who meet with the family will depend on who made the decision, the information upon which the decision was based and the individual circumstances of the case, as they affect who would be best placed to hold the meeting. Prosecutors are referred to section 7 of the Code of Practice for Victims of Crime (Victims' Code), which sets out the statutory obligations for the CPS.
In deaths in custody cases, there are enhanced pre-charge procedures for holding meetings. This is covered in separate guidance which should continue to be followed. Prosecutors should however, comply with this guidance in deaths in custody cases where a qualifying charge is brought.
In all qualifying cases, the CPS will offer to meet with the family at an appropriate time either prior to or after charge depending on the individual circumstances of the case. The CPS will write to the family via the FLO offering a meeting and enclosing a leaflet explaining the scheme (available on the internet). The form BFS 1 should be enclosed with the letter. The documentation should be emailed to the FLO.
The FLO will provide the family with the leaflet and outline the service to the appropriate family member, explaining the contents of the leaflet which includes an explanation of the CPS role.
The family may provide an indication to the FLO at this stage as to whether they wish to meet the prosecutor. The FLO will ask the appropriate family member to sign the BFS 1 form indicating their willingness to meet the prosecutor. The BFS 1 will then be forwarded to the appropriate CPS prosecutor.
Where the family does not wish to meet the prosecutor, the FLO will indicate the reasons on the form and return it to the prosecutor. An initial refusal does not preclude the family from requesting a meeting at a later stage.
The exact timing of this first meeting will vary from case to case and may be before or after charge depending on the circumstances. A pre charge meeting might be more appropriate where, for example, the suspect is on bail pending a charging decision being reached, or where the case is likely to be listed within a short timescale of the defendant being charged. This is particularly relevant where the proceedings are in the Magistrates Court.
In Crown Court cases, the meeting may take place at any time before the plea and case management hearing (PCMH). Depending on the circumstances of the case, this may be immediately before or after charge, or after service of the prosecution case.
The prosecutor should have had an opportunity to review the full file so that he/she fully understands the case before the meeting takes place. Undue delay should be avoided.
At the meeting, the prosecutor will:
- Explain the role of the CPS and the legal basis of the charges;
- Explain why it is necessary to use particular evidence, how the prosecution, defence and the judge will deal with it, and what the likely lines of cross examination could be;
- Outline the court process and anticipated progress of the case, including what is expected to happen at each court hearing;
- Explain Special Measures where relevant if family members are also witnesses, and practical considerations in relation to child witnesses;
- Explain the different position of those who are not witnesses i.e. who will be able to sit in court and hear all the evidence, and who will not;
- Explain the VPS and its purpose and disclosure (see below);
- Explain possible sentences, including an explanation of life sentences and tariffs in relevant cases;
- Explain the legal position if the defendant were to be acquitted i.e. there are very limited circumstances when prosecution can challenge a verdict;
- Answer any questions that the family may have.
Explaining the purpose of the VPS scheme
Prosecutors should consult the guidance on the VPS scheme as to the content of statements and the operation of the scheme when advising the FLO in preparation of the VPS.
In each case, the prosecutor should consider whether it is appropriate for one family member formally to adopt a composite VPS that refers to the impact on other family members. Areas should establish with the local judiciary as to whether this approach is acceptable. In split families however, the taking of separate VPS should be encouraged and (as above) separate meetings with the CPS prosecutor may need to be held.
Some family members may already have made a VPS before the first meeting is held. Others will not have done so. In either case, at the first meeting prosecutors will explain:
- The purpose of the VPS;
- Disclosure of the VPS;
- The relevance of the VPS in Sentencing;
Under the VPS scheme, the Practice Direction states that the court should take into account, so far as it considers it appropriate, the consequences to the victim. The court will not take into account views on sentence.
Accordingly, it is essential that families' expectations about the VPS are not raised unduly, with the effect that the family subsequently feel they have been misled about the purpose of the VPS in the sentencing process. Prosecutors are therefore advised to adopt a conservative view when advising the family - namely that the VPS is very unlikely to affect the sentence. This will prevent expectations being unduly raised.
Some families may be sceptical about the value of making a VPS at all if it has little or no effect on sentence. However, where a VPS is made, prosecutors should also advise that is open to family members to make a further VPS closer to the date of trial if they so wish.
The Attorney General's Guidelines on Disclosure and the provisions of the Criminal Procedure and Investigations Act 1996 should apply as normal when considering disclosure. The fact that the VPS will be disclosed to the defence should be made very clear. Some victims will not want the defendant to know the effect the alleged crime has had upon them, while others take the view that the statement permits the victim to confront the offender with the consequences of his/her actions in a relatively safe environment.
Meeting with the trial advocate
The CPS will offer the bereaved family an opportunity to meet with the trial advocate. This meeting will take place at an appropriate point before commencement of the trial, or, if it is known there will be a guilty plea, before that plea is entered.
As the main purpose of this meeting is for the family to have personal contact with the advocate who will present the case in court, in some cases it may be appropriate to combine this meeting with the meeting following charge.
The prosecutor must ensure that the trial advocate (whether HCA or external Counsel) is appropriately instructed in the requirements of the scheme at the point they are briefed in the case. It should also be emphasised that only in exceptional circumstances will a change of Counsel be permitted once a meeting has been held.
In those exceptional cases where it becomes necessary to instruct a new trial advocate following a meeting (e.g. if the brief is unavoidably returned) the family should be offered a further meeting with the new trial advocate.
Meeting if charges are discontinued or substantially altered, or left to lie on file
Following a decision to discontinue, substantially alter charges, or to allow rape counts linked to murder to lie on file, the CPS will write to the bereaved family within one working day of the decision to explain the decision (paragraph 7.4 of the Victims' Code). Within that letter the family will be offered the opportunity to meet with the CPS prosecutor to receive an explanation of that decision and to ask any questions they may have (paragraph 7.7).
Meeting following conviction
Where the defendant has been convicted, the prosecutor and the trial advocate will meet with the family. This meeting is informal and will normally take place at court immediately after conviction, although this may not always be the case.
The purpose of this meeting is to ensure that a VPS has been made (if the family wished to do so) and/or to confirm it is up to date. Where amendment to the statement is required, the FLO or other police officer at court will be asked to take a supplementary VPS which will be served on the court and the defence.
The prosecutor will also confirm the method of presentation to the court (i.e. whether the statement will be handed to the judge or read out by the trial advocate) and answer any questions that the family member or members may have at this stage in the process.
Meeting following acquittal or conviction on a less serious charge - Post Acquittal Meetings
The CPS will offer the bereaved family a meeting following an acquittal or a conviction on less serious charges. A letter offering a meeting should be sent to the family (via the FLO or SIO as appropriate) approximately 3 weeks after the acquittal. The letter should be signed by the prosecutor. This time interval will give the family the opportunity to consider any points they wish to raise and enable the prosecutor to receive feedback about the trial (assuming they did not present the case in court themselves) and prepare for the meeting.
The family should be advised that the meeting is optional and for their assistance should they have questions relating to the outcome of the case, the acquittal or any process thereafter. It may sometimes not be entirely clear why a verdict of not guilty was returned. However, there are limits on what the prosecutor is able to say, and to avoid raising expectations it should be emphasised that because a jury is not required to give reasons for its verdict, the prosecutor may not know exactly why the verdict was returned.
In Crown Court cases it may assist if the paralegal officer who was present during the trial is present at the meeting with the bereaved family to assist the prosecutor in dealing with questions about the progress of the case at court. The meeting must however, be led by the prosecutor and meetings must not be held with only the paralegal present.
In the vast majority of cases, it will not be necessary for the trial advocate to attend. However, the prosecutor should obtain a note from the trial advocate in advance of the meeting to help answer questions from the family. Where, in exceptional cases, it is considered necessary for the trial advocate to attend the prosecutor must seek the approval of their CCP/DCCP as appropriate.
At the meeting, the prosecutor will:
- Deal with any questions that the family may have about the process, including the trial and verdict;
- Provide an explanation of any appeal process where a person has been convicted of an alternative offence;
- Provide an explanation as to the high level of proof necessary to trigger an application to quash an acquittal - this is to manage any expectations raised in the minds of the family;
- Draw attention to the support available to the families through victim support groups;
- Offer to act as a contact point for any queries up to three months after the verdict.
Where a family member was also a witness to the proceedings, care must be taken to ensure that discussion in any meeting does not taint their evidence lest there should be a subsequent appeal relating to any alternative offence for which the defendant has been convicted. Accordingly, in some cases it may not be appropriate to hold such a meeting until after the appeal process has been concluded.
Meeting following sentence
The CPS (where possible the prosecutor) and the trial advocate will meet with the family at court following sentence, to explain the sentence and answer any questions. The Unduly Lenient Sentence provisions should also be highlighted in appropriate cases.
Where the family are not present at court, they will be notified of the sentence by the Police or Witness Care Unit. If the family have any queries in relation to the sentence, they will be referred to the CPS to answer those queries (paragraph 7.12 of the Victims' Code). This will generally be by telephone although a further meeting can be arranged if requested.
Meeting following leave to appeal being granted
CPS will offer to meet with the bereaved family where a defendant is appealing to the Court of Appeal against his sentence or conviction or both.
Once an appeal has been lodged, conduct of the case will pass to the central CPS Appeals Unit (AU). The allocated AU prosecutor will be responsible for communicating with the bereaved family and offering them the opportunity to meet the prosecutor at what he/she considers to be an appropriate stage of the proceedings. A police representative should also attend, albeit this may not be the original FLO or SIO. In some cases it may also be appropriate for the original Area prosecutor to attend the meeting; this is to be agreed by the Appeals Unit and the original Area. The meeting will usually take place at the local Area CPS office or at Rose Court, if the case originates from CPS London.
At the meeting, the prosecutor will:
- Explain the nature of the appeal - i.e. whether the appeal is against conviction, sentence or both;
- Explain the basis of the appeal and the grounds;
- Outline the anticipated progress of the case;
- Answer any questions the family may have.
If the family choose to attend the Court of Appeal hearing, they should be met at Court by a CPS representative, who will be on hand to assist the advocate in answering any further questions.
Meeting following reconsideration of a case after acquittal ('double jeopardy')
The CPS will offer to meet with the bereaved family where, following an acquittal, the case has been re-referred to the CPS for consideration of applying to the Court of Appeal to retry the defendant under Part 10 of the Criminal Justice Act 2003 ('double jeopardy' cases). These meetings will be personally conducted by the Director of Public Prosecutions.
Local road traffic protocols
Areas should ensure that any local road traffic protocols reflect the CPS responsibilities outlined in this guidance.
