Deceased Suspects - CPS Policy on Charging Decisions

• The law
• Charging decision on deceased suspects
• Communicating a charging decision already made in relation to a deceased suspect
• Cases where the suspect dies before a CPS charging decision has been made
• Continuing a police investigation after a suspect dies
• CPS reviews of previous charging decisions in relation to deceased persons
• Victims' right to review

The law

Under s.37B of the Police and Criminal Evidence Act 1984 the Director of Public Prosecutions (DPP) has the power to decide whether there is sufficient evidence to charge a person with an offence. The statutory provision clearly contemplates that any charging decision is in relation to a living person, as following the decision that person must be charged or cautioned or given notice of a decision not to charge.

In Turk v R [2017] EWCA Crim 391 the Court of Appeal confirmed that criminal prosecutions should not be pursued against those who have died: when a defendant dies during criminal proceedings, the court should take no further action in the proceedings and declare the indictment of no further effect [22]. The Court observed that critical to criminal justice process is that “trials are neither initiated nor pursued against those who have died” [1].

Charging decision on deceased suspects

The primary duty of the CPS is to deliver justice through the independent and effective prosecution of crime. The purpose of making a charging decision is to determine whether a suspect should be subject to criminal proceedings; and a decision to charge a person initiates a criminal prosecution against that person. The charging decision is also the gateway to the criminal justice system with all the protections that the process affords.

Since deceased persons cannot be prosecuted, the CPS will not make a charging decision in respect of a suspect who is deceased.

This applies in all cases where the suspect is deceased, including cases in which the police made a referral to the CPS for a charging decision prior to the suspect's death.

The CPS will also not make hypothetical charging decisions. For instance, it will not indicate:

• What the charging decision would have been if the suspect were still alive;
• Whether a different charging decision would be made now, in relation to a deceased suspect, as compared with the charging decision that was made previously in relation to the same suspect.

Communicating a charging decision already made in relation to a deceased suspect

In some cases the CPS may make a charging decision, which is communicated to the police, but the suspect subsequently dies before they have been charged by the police.

In these circumstances, the decision will inevitably be communicated to the victim.

It may also be necessary for the CPS and / or the police to consider wider communication of the decision to the general public.

Any public disclosure of a decision to charge should be accompanied with an explanation of the status of a charging decision, in particular that it does not mean that the deceased suspect was guilty of the alleged offence, as that would be a matter for a jury to decide.

Cases where the suspect dies before a CPS charging decision has been made

A suspect may die during an investigation, after the police have referred a case to the CPS, but before the case has been fully reviewed and a charging decision made.

The police may decide whether any further investigative steps should be taken and whether they wish to state publically their view on the sufficiency of evidence.

The police may also register a Recorded Crime Outcome, if in their view there was sufficient evidence to charge the suspect, if the suspect were still alive.

However, since the CPS review of the case is incomplete, it would not be in a position to communicate a charging decision. The CPS will not continue to review the case, as there would no longer be any requirement for a charging decision, since proceedings could not be instituted.

As stated above, the CPS will also not make a hypothetical charging decision, as the review would be incomplete and there is no additional public interest served by the CPS confirming whether the suspect would have been charged.

Continuing a police investigation after a suspect dies

The police may decide to continue its investigation following the death of a suspect: lines of inquiry may lead away from the initial suspect to another suspect; or there may be several persons suspected to have participated in the offending.

The CPS will continue to assist in these circumstances, whether by providing early investigative advice or by reviewing a case and making a charging decision in relation to the other suspects.

When advising on or making charging decisions in such cases, the CPS may need to consider the role played by the deceased suspect, and the evidence against that suspect. There are a number of reasons for this. For instance:

• If the offence was committed by just one person and there is evidence that it may have been committed by the deceased, this will be relevant to the assessment of the evidence against any other suspect, including any material that may need to be disclosed to that suspect, if charged with the offence.
• The deceased may have been a co-conspirator or involved in a joint enterprise offence. If so, his acts and declarations made in furtherance of the common design may be admissible in evidence against any other conspirator(s). Further, it may be desirable to name the deceased in the Indictment as a co-conspirator.
• Where the deceased is one of a number of suspects against whom a complainant has given evidence, if the evidence in relation to the deceased undermines the credibility of the complainant, this will be relevant in the cases against the other suspects.

Although the CPS may undertake a detailed review of the evidence against the deceased in these circumstances, it will not make a charging decision in respect of the deceased, for the reasons given above.

CPS reviews of previous charging decisions in relation to deceased persons

The DPP may request a review of a previous charging decision in relation to a person now deceased. This may be carried out internally or by an external individual or organisation.

The purpose of the review will be to subject past CPS approaches and decisions to re-evaluation and scrutiny, so that lessons can be learnt and applied to future charging decisions. Such reviews ensure transparency and help to maintain confidence in CPS decision making.

In carrying out reviews, particularly of decisions made many years earlier, a different approach to evidence and complainants may be used, reflecting changes in society and the criminal justice system since the original charging decision was made. Reviews will also apply contemporary CPS policies and guidance, including the Code for Crown Prosecutors, which provides guidance on the general principles to be applied when making charging decisions.

Therefore, in order to fully understand any conclusion that a previous charging decision was wrong, it may need to be seen in the context of the prevailing law, societal attitudes and prosecution policy at the time it was made.

Although a review may conclude that a previous decision was wrongly decided at the time, as stated above, since a deceased person cannot be prosecuted, the CPS will not make a contemporary or hypothetical charging decision in respect of the deceased suspect.

Victims' right to review

Under the CPS Victims'’ Right to Review scheme, a victim may request a review of a decision to stop or not to bring proceedings. If a request is made under the scheme, and the suspect dies between the original decision and the review, a review will still take place.

However, since it would no longer be possible to bring proceedings, the CPS would not make a fresh charging decision. The purpose of the review in these circumstances is to assess whether the original decision was wrong and, if so, to provide an explanation to the victim and, where it is right to do so, offer an apology. Further information on the scheme is available in the Victims' Right to Review Guidance.