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New Charging Guidance from the DPP – an attempt to encourage expedition

Charging (The Director’s Guidance) – sixth edition, December 2020

Updated guidance has been issued which sets out the arrangements prescribed by the DPP for charging decisions, the information required to be sent to the Prosecutor when a charging decision is sought from the CPS, the other material required to support a prosecution and the joint working framework for police and prosecutors during the investigation and prosecution of criminal cases.

Details

 The updated guidance sets out the responsibilities of the police and the Prosecutor in investigating and making a decision on whether to charge, and the appropriate charges.

Some key responsibilities of the police include:

  • Pursuing all reasonable lines of enquiry to ensure the evidence and any other material and information required to make a charging decision is obtained as soon as possible;
  • Diverting, charging and referring cases to prosecutors;
  • Recording the rationale for their decisions to deal with a case by way of an out of court disposal or charge;
  • Identifying cases that are appropriate for an out of court disposal as early as possible;
  • Taking no further action in cases that cannot meet the appropriate evidential standard without referral to a prosecutor and recording the rationale for these decisions;
  • Assessing whether cases meet the criteria for referral to the CPS for a charging decision.

Key responsibilities of the prosecutor include:

  • Making charging decisions and providing advice and guidance in accordance with The Code For Crown Prosecutors and the new Guidance within agreed time periods;
  • Recording their charging decisions and advice including the rationale for the decision;
  • Identifying cases that are appropriate for an out of court disposal as early as possible;
  • Stopping cases quickly which do not meet the evidential stage of the Full Code test and cannot be strengthened by further investigation

The guidance reiterates the circumstances in which the police can take a decision not to prosecute: where cases do not meet the evidential standard, where the case is suitable for an out of court disposal (unless precluded from doing so by stature or Director’s Guidance) or where it is within the police’s power to make a charging decision and the evidential test is met but it is not in the public interest to prosecute.

The CPS must review all police charged cases prior to the first hearing and consider whether the Full Code or Threshold Test is satisfied. The CPS also has statutory powers to decide that it is more appropriate to offer an out of court disposal, as long as they comply with the Victims’ Code.

The guidance also sets out the specific material the police must provide to the CPS when requesting a charging decision and makes clear that the responsibilities of the prosecutor include identifying and seeking to rectify evidential weaknesses and in bringing to an early conclusion those cases that cannot be strengthened by further investigation or where the public interest clearly does not require a prosecution.

Commentary

One aspect of this new Guidance of particular interest to youth justice practitioners is the far more detailed section on out of court disposals which includes:

  • Reference to circumstances where even formal diversion is inappropriate and where consideration should be given to a “more informal response”;
  • Confirmation that the police can make a decision to proceed with an out of court disposal without reference to a prosecutor for many types of offence;
  • Indictable only offences may be dealt with by way of an out of court disposal if a prosecutor determines it to be in the public interest to do so.

This final point is potentially useful to have in mind when considering, for example, a child or young person under investigation for their minor involvement in a robbery. Whilst the guidance states that a Deputy or Chief Crown Prosecutor would have to approve a decision to proceed with an out-of-court disposal for an offence of this nature, it may well be worthwhile to make strong representations for diversion given that it is likely that youths of good character would be amongst those most appropriate to receive an out of court disposal for an indictable-only offence.

Whilst much of this guidance is a reiteration and consolidation of established principles, it is helpful that it makes clear that expedition is key, and that the police and CPS should be identifying those cases which can be dealt with by way of an out of court disposal quickly, and similarly bringing to an early conclusion those cases where the evidential difficulties are insurmountable. At the very least defence practitioners will be able to use this guidance to bolster their representations and hold the police and the CPS to account regarding both the range of options for disposal and the time it takes to decide on one.

Written by Vivien Cochrane, Senior Associate, Kingsley Napley LLP