Gang related offences - Decision making in
Decision making in 'gang' related offences
- Gang culture
- Gang offending
- Prosecution of Gang Offences
- Modern Slavery Act 2015
- Victims and Witnesses
This guidance provides a summary of the relevant principles and case law to be applied when making charging decisions in gang related offences and when seeking to use gang related evidence in proceedings.
This guidance supports the cross-Government Serious Violence Strategy which sets out actions to address serious violence. It also addresses recommendation 6 of the Lammy Review which recommended that the CPS should consider the approach taken in relation to gang prosecutions.
Prosecutors should guard against unconscious bias and should not make assumptions about gang membership.
Given the negative connotations of the term ‘gang’, prosecutors should not refer to a group as a ‘gang’ in proceedings unless there is evidence to support the assertion. Using the term “gang” inappropriately risks casting the net of liability beyond that which can be established. It also disproportionately affects minority ethnic people. For these reasons, prosecutors must not use the term “gang” unless there is evidence to support that assertion.
However, prosecutors must also ensure that where there is admissible evidence of gang membership, the case is put on a basis that reflects the often very serious gravity of the offending.
The term “Gang” does not have a precise definition. Section 34(5) of the Policing and Crime Act 2009, as amended by the Serious Crime Act 2015, provides that something is ‘gang related’ if it occurs in the course of, or is otherwise related to, the activities of a group that:
- Consists of at least three people; and
- Has one or more characteristics that enable its members to be identified by others as a group.
Whilst this provides an indication of the characteristics of a gang, this definition was provided only for the purposes of the power to obtain an injunction. The wording is intentionally broad and wide-ranging to ensure that gang injunctions are used as an effective response to any gang activity encountered in a local area. Many groups of people may share a community, friendship or common characteristics such as age, but an additional feature of a gang is that it carries out criminal activity.
The following definitions are for information only, and are provided to explain the different structure, purpose, operation and context in which gangs operate. The definitions have no bearing on charging decisions made by the CPS.
Urban street gangs and many other gangs may evolve into organised crime groups (OCG). Urban street gangs tend to be less organised than OCGs and more concerned with perpetuating a threat of violence or harm across a geographical area related to the gang’s main activities. These types of gangs can be involved in varied forms of serious criminality that can have a significant impact on local communities.
The Oxford English Dictionary defines the term ‘Urban’ as:
- In, relating to, or characteristic of a town or city.
- Denoting or relating to popular dance music associated with black performers.
- Denoting popular black culture in general.
As the term ‘urban’ can be used to describe black culture it is important to guard against both conscious and unconscious prejudice and bias when using the term.
OCGs are made up of members who plan, coordinate and carry out serious crime on a continuing basis. Their motivation is often, but not always, financial gain. OCG structure varies but often consists of a core of key individuals, surrounded by subordinates and other more transient members, as well as an extended network of associates. Many OCGs are loose networks of criminals that come together for a specific criminal activity, acting in different roles depending on their skills and expertise. Collaboration can be facilitated by family or ethnic ties, shared experiences such as prison as well as associations formed in schools, youth settings, Children’s homes, etc. OCGs will often use violence and intimidation in communities in order to operate.
The Government’s Serious Violence Strategy provides the following definition of County Lines:
‘County Lines is a term used to describe gangs and organised criminal networks involved in exporting illegal drugs into one or more importing areas [within the UK], using dedicated mobile phone lines or other form of ‘deal line’. They are likely to exploit children and vulnerable adults to move [and store] the drugs and money and they will often use coercion, intimidation, violence (including sexual violence) and weapons’.
Gang culture often involves serious and widespread criminal offending. Gangs often have strong ties with affiliated serious organised crime offenders, based on a shared acquisitive interest and peripheral links formed in prison. The ties provide a pathway for individuals to be drawn into OCGs, leading to more serious offending.
Gangs often prey on young and other vulnerable people, coercing them to become involved with crime. Violence may be threatened or used to ensure new recruits stay with the gang and carry out criminal activity to fund its existence and its hierarchy.
County lines gangs use a range of tactics to minimise the risk of being identified and arrested, including the use of children and young and vulnerable people to service the drugs lines (see the County Lines typology). These young or vulnerable people are often trafficked away from their homes, and can be the victims of other violent crimes committed to ensure there is control over the gang. This can include debt bondage (by staged robberies or aggravated burglaries of the houses which the drug runners are staying), general violence or sexual assault in order to instil fear and ensure submission to the gang’s demands. The drugs runners face severe penalties, including injury by stabbing and shooting, potentially including death, if they are suspected of assisting the police or a rival gang. Alternatively, some runners may work for multiple OCGs and are treated as a commodity.
Gang offending varies significantly and is not easily defined.
Drug dealing is the root cause of a significant amount of gang offending. It provides wealth to a select group at the top of the hierarchy.
Many gang members carry weapons to protect themselves during drug dealing activity. Firearms and knives may also be carried for respect or retaliation, to expand their revenue collection base, or to emulate ‘gangster’ culture. Firearms may be ‘used’ without being discharged, for example to threaten and control others, and in connection with armed robberies, drug distribution, kidnap and extortion. Gangs may also use acid and other corrosive substances as weapons to attack victims in retribution.
Gangs are increasingly using drill music and social media to promote gang culture, glamorise the gang lifestyle and the use of weapons. They may post videos online that seek to taunt rivals, incite violence or glamorise criminality. The videos often show the brandishing of weapons, include incendiary remarks about recent incidents of young people being killed or seriously injured, and threats to stab or shoot specific individuals and members of rival groups. The instant nature of social media means that plans develop rapidly, disputes can escalate very quickly and are seen by a large audience, which increases the need to retaliate in order to ‘win’ the dispute. If such an allegation is referred to the CPS prosecutors should consider whether a substantive offence is disclosed.
Serious and organised criminals coordinate crimes both within and outside prison walls. The offending is enabled by the use of illicit substances, mobile phones and SIM cards smuggled into prisons. This contributes to violence in prisons.
Gang membership and offending in the community is linked to violence between rival gangs in prisons. Existing gang affiliations will continue in prison and new gangs form. See also the CPS Legal Guidance on Prison related Offences.
Some gang members enter into relationships with women and girls who they control, coerce and subject to domestic abuse. The women and girls may be sexually assaulted, threatened with sexual assault and prostituted for sexual favours in payment for drugs. Some females are purposefully befriended by gangs who then enter into a relationship with the female. These females may be vulnerable and this behaviour could be viewed as a type of grooming.
In County Lines, a trend has been seen where gang members enter into a relationship with a female, and then use her address for dealing drugs. The females become intimidated by the gang member and continue with the relationship through fear. They may be controlled through coercive or abusive behaviour to the point that they are used for prostitution.
It is important to recognise that some women and girls may be complicit with the gang and active members themselves.
See further the CPS Domestic Abuse Guidelines for Prosecutors.
When selecting charges in response to gang criminality prosecutors should have regard to Paragraph 6.1 of the Code for Crown Prosecutors and choose offences which:
- reflect the seriousness and extent of the offending;
- give the court adequate powers to sentence and impose appropriate post-conviction orders;
- allow a confiscation order to be made in appropriate cases, where a defendant has benefitted from criminal conduct; and
- enable the case to be presented in a clear and simple way.
Prosecutors should refer to the substantive legal guidance for the relevant offences selected.
- Where it may be difficult to prove specific acts of drug supply, consideration should be given to conspiracy charges in order to demonstrate the overall criminality.
- Consideration should be given to whether the person has entered voluntarily into the activity, or has been groomed; threatened or manipulated.
- Where vulnerable individuals and / or children are involved in a County Lines investigation, the Modern Slavery Act 2015 provides a potential defence to those individuals notwithstanding the serious nature of such charges. Prosecutors should be alert as to whether a referral has been made to the Single Competent Authority for a decision about whether the individual is a victim of modern slavery. Further guidance is provided in the Human Trafficking, Smuggling and Slavery prosecution guidance).
- Gangs sometimes post messages, in different forms, online. This may be intended to promote gang culture, and on occasion is used to glorify violence. It can also be used to send threats, taunt rivals, and trigger territorial disputes or “turf wars”. It is likely that gang affiliated recipients of such messages will recognise an obligation to comply and / or respond in kind. Careful consideration should be given to whether specific acts of violence are being encouraged – this can be done online as well as in person.
Where the prosecution case focuses on gang activity, it will be necessary to prove the existence of the gang and explain its relevance to the circumstances of the case.
Social media, communications data, ‘cell site’ analysis, CCTV and body worn video should be considered as ways to prove the existence of the gang. Forensic evidence may assist, for instance to prove that weapons were used in more than one incident.
Expert witnesses may also be used to provide evidence of group identity. This may include witnesses who have experience of gang communications and can give an expert opinion on their interpretation to assist the jury. Or the evidence of police officers who, beyond giving observation evidence proving the association of a gang member, may have expertise about gangs. Care must be taken to ensure that this evidence complies with the requirements of expert evidence.
Evidence of gang affiliation may be admissible as bad character evidence, on the basis of “explanatory” or background evidence, under Section 101(1)(c) Criminal Justice Act (CJA) 2003, or as relevant to an important matter in issue, under Section 101(1)(d) CJA, although other statutory gateways may also be applicable.
The important matter in issue may be:
- Whether the defendant has an innocent explanation
- Motive to commit an offence
Prosecutors should consider introducing bad character to evidence that other members of the gang have previous convictions, for example trafficking Class A drugs.
Myers v R  UKPC 40: In a series of conjoined appeals from Bermuda, the Privy Council issued guidance on the admissibility of evidence relating to gangs, their existence, members’ affiliations and activities. In each case a police officer testified about the gangs involved and the feuding between them. He was treated as an expert witness testifying on their territories, feuds, allegiances and behaviour.
The Privy Council provided a close analysis of the relevant law of evidence, returning to first principles. Note that the decision is based on common law authorities and does not deal directly with the CJA 2003 so not all of the opinion of the Board is useful for English and Welsh courts.
The Judicial College E-letter (crime) November 2015 provided a helpful summary of the relevant aspects of the decision:
- Evidence of a motive shared by gang members may be relevant and admissible without the motive being harboured uniquely by one defendant. Evidence of the motive rebuts the argument: why would this defendant with no personal connection or dispute with V have killed him?
- At common law, the ‘Pettman’ proposition about admitting background evidence needs cautious handling (see also now in England and Wales s101(1)(c) of the CJA 2003).
- Careful attention to the hearsay rule is necessary where, for example, the Crown seek to prove, properly by admissible evidence, the trigger, within the longstanding feud between the gangs, which led to the instant offence.
- The ambit of gang evidence will depend on the role it may have in assisting the jury to resolve issues in the case.
- Police officers can give expert opinion evidence about gangs, provided the officer has made ‘a sufficient study, whether by formal training or through practical experience, to assemble what can properly be regarded as a balanced body of specialised knowledge which would not be available to the tribunal of fact’. (See generally R v Hodges  EWCA Crim 290. ‘Evidence of the practices, mores and associations of gangs, whether general or particular, is in a similar category. It has been received in several jurisdictions and there can in principle be no objection to it being given by a police officer, providing that the original threshold requirements for expertise are established, and providing that the ordinary rules as to the giving of expert evidence are observed’. ‘It is particularly important that [a police expert] witness should fully understand that once he is tendered as an expert he is not simply a part of the prosecution team, but has a separate duty to the court to give independent evidence, whichever side it may favour. In particular a police expert needs to be especially cautious of the duty to state fully any material which weighs against any proposition which he is advancing, as well as all the evidence on which he had based that proposition’).
- As part of the duty of an expert witness to the court, a police officer tendering expert evidence must make full disclosure of the nature of his material. His duty involves at least the following:
- He must set out his qualifications to give expert evidence, by training and experience.
- He must state not only his conclusions but also how he has arrived at them.
- if they are based on his own observations or contacts with particular persons, he must say so;
- if they are based on information provided by other officers he must show how it is collected and exchanged and, if recorded, how;
- if they are based on informers, he must at least acknowledge that such is one source, although of course he need not name them.
- In relation to primary conclusions relating to the defendant or other key persons, he must go beyond a mere general statement that he has sources of kinds A, B and C. He must explain where the particular information he is advancing has come; an example would be observations of a defendant in the company of others known to be members of a gang.
If a witness statement tendered for trial does not meet these standards, the judge can be asked to direct that particular issues are explained further, as necessary. Such an application should not be left until the beginning of the trial but should be made well beforehand. If directions given are not complied with, that will be relevant both to whether the witness has established a proper basis for giving expert evidence and to whether his evidence ought to be excluded.
Prosecutors should note that Lord Hughes emphasised the importance of distinguishing between explanatory evidence and evidence of propensity:
‘The Pettman proposition, valid as it is, needs cautious handling if it is not to become a token excuse for admitting the inadmissible. Claims by prosecutors that the evidence is necessary to understanding of the case, or, as is sometimes asserted, to discourage the jury from wondering about the context in which the events discussed occurred, need to be scrutinised with care. It is only where the evidence truly adds something, beyond mere propensity, which may assist the jury to resolve one or more issues in the case, or is the unavoidable incident of admissible material, as distinct from interesting background or context, that the justification exists for overriding the normal Makin prohibition on proof of bad behaviour. Moreover, admissibility is subject to the power to exclude under Noor Mohammed or, now, section 93’.
In Myers, the gang evidence was admissible not because it was incidental to evidence otherwise admissible, but because in itself it significantly advanced the Crown’s case by demonstrating motive.
R v Elliot  EWCA Crim 2378: Evidence showing that the Defendant was a member of a gang involved in drug and gun crime was admissible as relevant to an important matter in issue, namely to rebut the defence that guns and drugs found in a cupboard outside the defendant’s home were deposited by others. The evidence assisted the jury to resolve the disputed issue as to possession of those items .
R v Okokono  EWCA Crim 2521: The prosecution alleged that a gang-related killing was a revenge attack for an earlier murder. The conviction of one of the participants for carrying a knife at the time of the earlier killing was admissible because it was highly relevant evidence of the background to the case. It was important explanatory evidence about the motive for the murder, namely a revenge attack. It also established the appellant’s willingness to engage in gang fights, knowing that others had a propensity to use knives to lethal effect .
R v Lewis  EWCA Crim 48: Evidence of gang membership was relevant to a number of issues in the case, including identifying those at the scene of a riot, to rebut innocent presence at the scene and to provide evidence of common purpose [84-87].
R v Awoyemi  EWCA Crim 668: Evidence of gang affiliation provided a link between the accused and a gang that glorified violence, used firearms and threats of violent retribution towards those who crossed them. The prosecution could thereby establish a motive for the shooting, an association with firearms and lethal violence and could rebut innocent presence and association. The evidence indicated the extent to which the accused had signed up to gang and gun culture .
R v Sode and others  EWCA Crim 705: The judge had not erred in admitting evidence of the dispute between gangs in the local area. There could be no doubt that gang-affiliation evidence was relevant. The shooting bore all the hallmarks of gang-related revenge for a slight, which was real or may have been imagined .
R v Stewart (Garfield Ricardo)  EWCA Crim 447: A recorder had properly directed the jury that gang-related evidence, admitted under the Criminal Justice Act 2003 s.98, went to the issue of the intent of a 19-year-old offender charged with possession of a firearm with intent to endanger life.
R v Khan  EWCA Crim 2893: The defendants were stopped in a taxi. One was found to be in possession of a samurai sword and a loaded firearm. The other was wearing body armour and had a balaclava helmet. The prosecution alleged the defendants were members of a violent gang called the Harlem Spartans and were in joint possession of the items. One of the defendants accepted that he was part of the Harlem Spartans but that they were not a violent gang but a group involved with rap music. The expert evidence of a police officer, who had been extensively involved in the investigation of gang related activity, was admissible opinion evidence as to whether the Harlem Spartans were a group of rap musicians or a violent gang.
Where the evidence discloses that the defendant has been involved in gang-related offending, prosecutors should carefully consider the public interest factors set out in the Code for Crown Prosecutors, in light of the facts of the case, and, in particular:
- The suspect’s maturity – prosecutors are reminded that children and young adults will continue to mature into their mid-twenties and therefore the age and subsequent maturity of a suspect may act as an explanation for their gang membership, susceptibility to influence and as a factor against prosecution.
- Whether a conviction is likely to result in a significant sentence. This is an indicator of the seriousness of the offence.
- Whether the offence is widespread in the area where it was committed, noting the restrictions on deploying this evidence for the purposes of sentence in R v Marco Bondzie [Practice Note]  EWCA Crim 552.
- Whether there is evidence that the offence was premeditated.
- Whether a prosecution would have a significant positive impact on maintaining community confidence.
- Whether there is evidence of a culture of carrying weapons which encourages violence and may lead to more serious criminal behaviour.
- Whether a weapon was used or violence threatened during the commission of another offence.
- Whether the suspect was a ringleader. A suspect is likely to have a much lower level of culpability if they have been compelled, coerced or exploited, particularly if they are the victim of a crime that is linked to their offending.
- Whether the suspect is, or was at the time of the offence, suffering from any significant mental or physical ill health. In some circumstances this may mean that it is less likely that a prosecution is required. Prosecutors should refer to CPS guidance on Suspects and Defendants with Mental Health Conditions or Disorders.
- Any grounds for believing the offence is likely to be repeated.
- The circumstances of and the harm caused to the victim – a victim’s vulnerability may mean that it is more likely that a prosecution is required. However, prosecutors also need to consider if a prosecution is likely to have an adverse effect on the victim’s physical or mental health, always bearing in mind the seriousness of the offence.
Prosecutors should also consider whether the person has entered voluntarily into the activity or has been groomed; threatened or manipulated. Where coercion, manipulation, or exploitation falls short of the legal defence of duress, depending on the degree, it may still be a powerful public interest factor weighing against prosecution.
The public interest will almost always require a prosecution whenever there is sufficient evidence to show that an adult has committed a firearms offence, because of the risk to public safety. Similar public interest considerations will apply where there is the use of, or threatened use of, other weapons e.g. knives, acid or other weapons capable of causing serious injuries.
When considering the public interest in any case, consideration will be given as to whether the matter can be appropriately dealt with out of court.
What is appropriate in the circumstances of each individual defendant will depend on the seriousness of the offence, the results of the offending behaviour, the antecedents of the offender and the likely outcome at court.
Where an out of court disposal offers an outcome appropriate to the circumstances of the case, it should be considered and any relevant guidance taken into account. The views of the victim should, wherever possible, be obtained and considered.
In cases referred to a prosecutor for a charging decision, the CPS may recommend the case is dealt with by way of an out of court disposal. Prosecutors should refer to the guidance about Cautioning and Diversion.
The key considerations governing the decisions made by Crown Prosecutors in dealing with youths are set out in the Youth Offenders guidance.
When dealing with allegations of gang offending and county lines offending prosecutors should consider the offences in the Modern Slavery Act 2015, particularly where young or vulnerable people have been deliberately targeted, recruited and exploited. The legal guidance on the Modern Slavery Act highlights particular issues that prosecutors need to be aware of (see the Human Trafficking, Smuggling and Slavery prosecution guidance).
Victims and witnesses of gang related offending may not be willing to engage with the police and provide evidence, due to fear of retaliation.
It must also be recognised that some exploited individuals, particularly young victims, may not consider themselves to be ‘victims’. The exploitation carried out through the grooming process often leads them to feeling protective of the relationship they have with their abuser, and they do not consider the grooming to be abuse or control.
It is also likely that some of the victims or witnesses may be members of a rival gang and unwilling to support the investigation and prosecution. There will also be cases where the victim has initially engaged but later refuses to give evidence. In such cases, consideration must be given to the evidence provided by body worn video, CCTV, 999 and 101 calls, forensic evidence and evidence which may be available via social media, as well as relevant provisions under the rules on hearsay, see the Hearsay legal guidance.
Vulnerable people are often susceptible to exploitation by gangs carrying out drug dealing activity. Their ‘payment’ might be drugs for their own personal use.
In very exceptional circumstances, consideration should be given as to whether it is appropriate to apply for a witness anonymity order.
The Youth Justice and Criminal Evidence Act 1999 introduced a range of measures that can be used to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses. The measures are collectively known as ‘Special Measures’ and are subject to the discretion of the court, see the Special Measures legal guidance. In cases involving gang offending, prosecutors should consider whether witnesses would benefit from any of the available special measures.
Gang offending can have a devastating effect on victims. Victim Personal Statements can be used by the sentencing court to illustrate the affect that the offending has had on the victim, see the Joint Agency guide to the Victim Personal Statement.
Community Impact Statements (CIS) enable the court to consider offences in the context in which they were committed and take account of the harm inflicted on the wider community, see the Community Impact Statement guidance. A CIS can be used to inform the sentencing court of the impact on the community of the prevalence of gangs.
Part IV of the Policing and Crime Act 2009 allows the Police and local authorities to apply for injunctions to prevent gang related violence and gang-related drug dealing activity. Gang injunctions allow Courts to place a range of prohibitions and requirements on the behaviour and activities of a person involved in gang-related violence. Examples of these conditions are set out under Section 35 and could include prohibiting someone from being in a particular place or requiring them to participate in rehabilitative activities.
The CPS does not have the power to apply for gang injunctions but should be consulted to discuss any potential impact on parallel criminal proceedings. Gang injunctions are a valuable tool in preventing gang-related violence alongside a range of other prevention, detection and enforcement measures.
- The Anti-social Behaviour, Crime and Policing Act 2014 introduced a range of powers to ensure that local agencies have the tools they need to respond to different forms of anti-social behaviour. For example, the police and local authority may use the closure power to close premises quickly which are being used, or likely to be used, to commit nuisance or disorder.
- Slavery and Trafficking Risk Order under the Modern Slavery Act 2015 (MSA 2015): Where MSA 2015 offences are being investigated, the police force solicitor may consider whether to apply to the Magistrates' Court for a Slavery and Trafficking Risk Order, before or after charge. The Slavery and Trafficking Risk Order can be applied for in respect of un-convicted defendants where victims or members of the public may be at risk of harm. The Risk Orders can be used in two different ways:
- Where investigation has commenced but protection of victims / potential victims is needed whilst police inquiries are on-going; or
- In cases where there is insufficient evidence to prosecute but there is a need to restrain the activities of suspects which may lead to harm.
- Serious Crime Prevention Order: Evidence of gang activity in prison is potentially relevant to a subsequent application for a Serious Crime Prevention Order (SCPO). The evidence will be relevant to the statutory test in Section 19(2) of the Serious Crime Act 2007: The court may make a SCPO if it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales. SCPOs can be applied for as a stand-alone order or on conviction. The Serious Crime Prevention Orders guidance should be referred to for information about the standard of proof and the CPS staff with delegated authority to apply for a SCPO in the Crown Court following conviction for a serious offence.
- Criminal Behaviour Order: The prosecution may apply for a Criminal Behaviour Order (CBO) where the offender has been convicted of a criminal offence. CBO prohibitions which could be used to reduce the risk of gang offending include: non-association, exclusion zones, curfews, the wearing of certain types of clothing, possession of unregistered mobile phones and contributions to websites. In county lines cases CBOs could be sought to restrict travel between the home city and the county area. Care must be taken to ensure that the CBO prohibitions and / or requirements do not replicate SCPO restrictions.
- Slavery and Trafficking Prevention Order (distinct from the Slavery and Trafficking Risk Order): Upon conviction for a MSA 2015 offence, the prosecutor should normally apply for a Slavery and Trafficking Prevention Order (see above). A prosecutor can use the evidence adduced during a trial to support any application and to seek conditions which restrict the defendant from engaging in any activities pursued whilst committing the original offence such as recruiting victims, arranging travel or appropriate financial restrictions.
- Forfeiture and destruction (knives, firearms and dogs): A prosecutor should, upon conviction, apply for the forfeiture of any knives and / or offensive weapons used in connection with the gang offending. Prosecutors should note that destruction of a firearm should not be routinely requested on conviction unless the police specify otherwise, as the weapon may be of use to police armourers and Forensic Service Providers. Where a dog is used in the commission of any offence, prosecutors should consider whether it would be appropriate to make an application to forfeit the dog under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000. See the Dangerous Dogs legal guidance.