The CPS have issued new interim guidance on the application of the public interest test for charging decisions and the review of ongoing cases during the coronavirus pandemic. This guidance should be considered when assessing whether it is in the public interest to prosecute a child.
This guidance recognises the unprecedented challenge facing the criminal justice system at this time, with the scale and seriousness of the situation creating significant difficulties for the criminal justice process.
When considering the Code for Crown Prosecutors particularly whether prosecution is a proportionate response at paragraph 14.4 (f) 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.
Prosecutors should also note the Interim CPS Charging Protocol, which provides guidance on the handling of charging decisions during the Covid-19 crisis.
The guidance states that each case must be decided on its own facts and merits but refers to age and / maturity as one of the factors relevant to the determining the interests of justice. Importantly it states the following:
‘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.’ [para 12]
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.
All criminal lawyers representing children should be aware of this important interim guidance and ensure prosecutors properly consider the relevant factors before making a charging decision or when reviewing a case. In many cases involving children, it will not be in the public interest to prosecute and this guidance further acknowledges the requirement to treat children differently to adults, especially so during these unprecedented times. The best interests of the child should always be a primary consideration and regard should continue to be had to the welfare of the child.