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Coronavirus: Interim CPS Case Review Guidance – Application of the Public Interest Covid-19 crisis response

|Legal Guidance

1. This interim guidance is for use by prosecutors during the Coronavirus pandemic.

Decisions to which this guidance relates

2. The Code for Crown Prosecutors (The Code) requires prosecutors to consider whether a prosecution is required, or should be continued, in the public interest when:

  • Providing advice to investigators, which includes stopping cases where the public interest clearly does not require a prosecution [3.4 & 4.4].
  • Reviewing a case for charge under the Full Code Test [4.9-4.14] or the Threshold Test [5.1- 5.11].
  • Reviewing a case that has already been charged, under the continuing duty to review, particularly where there is a change of circumstances [3.6 & 6.5].
  • Accepting guilty pleas to some, but not all charges; or to a less serious offence [9.5].
  • Reconsidering a prosecution decision [10.1-10.3].

3. In all of these situations, prosecutors should consider the public interest as set out in:

  • The Code at paragraphs 4.9-4.14; and
  • Any CPS policy or guidance.

Impact of Covid-19 on the CJS

4. 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.

5. 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.

6. Government guidance on social distancing mean courts cannot operate as they did prior to the crisis. The Senior Presiding Judge has set out guidelines governing health and safety which must be in place in the Crown Court, ahead of them operating normally. The same principles must apply to the magistrates’ courts.

7. Sections 51-56 of the Coronavirus Act 2020 have extended the use of live links in criminal proceedings. These are currently being utilised to allow some audio or video-enabled hearings to be conducted. Although some summary trials by video link are permitted under these provisions, there are significant challenges in enabling the operation of a fully virtual court. Juries are excluded from the use of live links, so Crown Court trials cannot operate via a virtual court.

Is prosecution a proportionate response?

8. Paragraph 14.4 of 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 f): Is prosecution a proportionate response?

9. 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, as set out above. 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.

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

11. 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.

12. 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.

13. Where appropriate, prosecutors should engage with defence representatives.

Implementation of this guidance

14. This guidance should be considered in relation to all decisions that require a consideration of the public interest in bringing or continuing a prosecution: see above.

15. With regard to live cases, prosecutors should be proactive in discharging their ongoing duty to review the evidential and public interest stages of the relevant Code Test. In particular, the Covid-19 pandemic should be considered to be a “change in circumstances” under paragraph 3.6 of The Code. Prosecutors should therefore decide what, if any, impact this change in circumstances has on the public interest in continuing the prosecution. In the majority of cases, there will be no impact at all, and the public interest will lie with continuing the prosecution. In some cases, however, prosecutors may decide 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.

16. Where cases have already been listed for trial and adjourned due to witness issues, further considerations will apply. Prosecutors should actively seek to determine whether:

  • The witnesses still support the prosecution and will attend court.
  • Support is required to secure their attendance.
  • Their attendance needs to be secured with a witness summons.

17. This Guidance does not change the Code. It clarifies prosecutors' review responsibilities under the Code in the context of the Covid-19 pandemic.

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