April 2020

Is Coronavirus going to be a ‘Get out of Jail’ Card?

‘No’ is the simple answer. However, it is more complicated than that.

Before a prosecution is commenced, the Crown Prosecution Service must apply two distinct tests.

The first is whether there is sufficient evidence to provide a realistic prospect of conviction; If not, the case does not proceed further.

If there is sufficient evidence, the second question must be answered, namely whether a prosecution is in the public interest.

To assess the public interest, prosecutors must consider seven different factors:

How serious is the offence committed?

The more serious the offence, the more likely it is that a prosecution is required.

When assessing the seriousness of an offence, prosecutors should include in their consideration the suspect’s culpability and the harm caused. This is done by asking themselves the next two questions;

What is the level of culpability of the suspect?

The greater the suspect’s level of culpability, the more likely it is that a prosecution is required.

Culpability is likely to be determined by:

• the suspect’s level of involvement;
• the extent to which the offending was premeditated and/or planned;
• the extent to which the suspect has benefitted from criminal conduct;
• whether the suspect has previous criminal convictions and/or out-of-court disposals and any offending whilst on bail or whilst subject to a court order;
• whether the offending was or is likely to be continued, repeated or escalated;
• the suspect’s age and maturity (see paragraph d below).

A suspect is likely to have a much lower level of culpability if the suspect has been compelled, coerced or exploited. This is particularly the case if they are the victim of a crime that is linked to their offending.

Prosecutors should also have regard to whether the suspect is, or was at the time of the offence, affected by any significant mental or physical ill health or disability. In some circumstances this may mean that it is less likely that a prosecution is required. However, prosecutors will also need to consider how serious the offence was, whether the suspect is likely to re-offend and the need to safeguard the public or those providing care to such persons.

What are the circumstances of and the harm caused to the victim?

• The circumstances of the victim are highly relevant. The more vulnerable the victim’s situation, or the greater the perceived vulnerability of the victim, the more likely it is that a prosecution is required.
• This includes where a position of trust or authority exists between the suspect and victim.
• A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public.
• It is more likely that prosecution is required if the offence was motivated by any form of prejudice against the victim’s actual or presumed ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity; or if the suspect targeted or exploited the victim, or demonstrated hostility towards the victim, based on any of those characteristics.
• 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, the availability of special measures and the possibility of a prosecution without the participation of the victim.
• Prosecutors should take into account the views expressed by the victim about the impact that the offence has had. In appropriate cases, this may also include the views of the victim’s family.
• However, the CPS does not act for victims or their families in the same way as solicitors act for their clients. Prosecutors must form an overall view of the public interest.

What was the suspect’s age and maturity at the time of the offence? 

• The criminal justice system treats children and young people differently from adults and significant weight must be attached to the age of the suspect if they are a child or young person under 18.
• The best interests and welfare of the child or young person must be considered, including whether a prosecution is likely to have an adverse impact on their future prospects that is disproportionate to the seriousness of the offending.
• Prosecutors must have regard to the principal aim of the youth justice system, which is to prevent offending by children and young people. They must also have regard to the obligations arising under the United Nations 1989 Convention on the Rights of the Child.
• Prosecutors should consider the suspect’s maturity, as well as their chronological age, as young adults will continue to mature into their mid-twenties.
• As a starting point, the younger the suspect, the less likely it is that a prosecution is required.
• However, there may be circumstances which mean that, notwithstanding the fact that the suspect is under 18 or lacks maturity, a prosecution is in the public interest. These include where:

1. the offence committed is serious;
2. the suspect’s past record suggests that there are no suitable alternatives to prosecution; and
3. the absence of an admission means that out-of-court disposals that might have addressed the offending behaviour are not available.

What is the impact on the community?

•  The greater the impact of the offending on the community, the more likely it is that a prosecution is required.
• The prevalence of an offence in a community may cause particular harm to that community, increasing the seriousness of the offending.
• Community is not restricted to communities defined by location and may relate to a group of people who share certain characteristics, experiences or backgrounds, including an occupational group.
• Evidence of impact on a community may be obtained by way of a Community Impact Statement.

Is prosecution a proportionate response?

In considering whether prosecution is proportionate to the likely outcome, the following may be relevant:

1. The cost to the CPS and the wider criminal justice system, especially where it could be regarded as excessive when weighed against any likely penalty. Prosecutors should not decide the public interest on the basis of this factor alone. It is essential that regard is also given to the public interest factors identified when considering the other questions in paragraphs 4.14 a) to g), but cost can be a relevant factor when making an overall assessment of the public interest.
2. Cases should be prosecuted in accordance with principles of effective case management. For example, in a case involving multiple suspects, prosecution might be reserved for the main participants in order to avoid excessively long and complex proceedings.

Do sources of information require protecting?

• In cases where public interest immunity does not apply, special care should be taken when proceeding with a prosecution where details may need to be made public that could harm sources of information, ongoing investigations, international relations or national security. It is essential that such cases are kept under continuing review.

Does the Coronavirus emergency change this test?

Revised guidance issued on 14th April 2020 to prosecutors states the following:

“One of these questions is f): Is prosecution a proportionate response?

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.

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.

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

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.

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.

Where appropriate, prosecutors should engage with defence representatives.”

What does this mean in practice?

In short, we expect many cases that would ordinarily have been prosecuted, to be disposed of differently. This does not necessarily mean that there will be no sanction, but it does increase the likelihood of a out of court disposal.

Of course, a sanction should only be accepted if there is guilt. Where that can be established, careful thought will need to be given to the proper approach, particularly in respect to early admission.

We can expect this process to be subject to a great deal of complex negotiation.

All of our solicitors are well versed in this aspect of law and are ready to secure the most appropriate outcome for all of our clients. However, it is important that you seek advice at the earliest possible opportunity.

How can we help?

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

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Mitigation; what does the Court take into account?

Mitigation

The dictionary definition of “to mitigate” is to lessen in force or intensity, to make less severe. Mitigation is the act of reducing how harmful, unpleasant or bad something is. It is something that causes the court to judge a crime to be less serious or to make a punishment less severe.

There are obvious mitigating factors that most people know about. These include factors such as an early guilty plea or not having any previous convictions.

R v Sanyaki

A recent case at the Court of Appeal highlighted a mitigating factor that some may not have considered.

Sanyaki was a student nurse. Over a four-month period she photographed the front and back of credit cards belonging to other students. She then used the details to pay for goods and services totalling around £7,000. She pleaded guilty to fraud and also the theft of a driving licence and credit card belonging to a student.

The student appealed against the ten-month period of detention that was imposed. She was 18 at the time of the offending in her first year of an adult nursing course. She was asked to leave university when the offences came to light. However, she found a job as a full-time care assistant. She was 20 at the time of sentence and of previous good character.

The sentencing judge took the view that the sentence could not be suspended as it was a prolonged course of conduct, stealing the details of a variety of different people.

The approach of the Court of Appeal

The Court of Appeal is slow to interfere with an exercise of judgement as to whether or not to suspend a sentence where all relevant considerations have been taken into account.

The Court will only interfere if the decision was plainly wrong in principle or results in a sentence which is manifestly excessive.

What happened in this case?

In this case it was found that the judge did not weigh all the relevant considerations in considering whether to suspend the sentence. The Court of Appeal considered that the sentence should have been suspended.

They stated that students who do this kind of thing can expect no concessions from the court. However, the effect of a conviction on future careers, particularly those of previous good character and where the offences were committed when they were young, is a piece of personal mitigation that cannot be overlooked.

The fact that she was a student, therefore, was a mitigating factor. The Court considered the impact that the sentence was going to have on her career, although she would not be able to continue her nursing course and her job as a care assistant.

Sanyaki’s appeal was successful, and her sentence was suspended, and she was to complete unpaid work hours.

How can we help?

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

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Death by dangerous driving and causation

In some instances, more than one person can be responsible for causing death by dangerous driving.

An unusual case arose recently where the “driver” of a car which was stationary on the hard shoulder was charged with causing death by dangerous driving.

What happened?

“A” was the driver of the car on the hard shoulder. She was the designated driver taking her drunk friends’ home in the early hours of the morning. “A” became irritated by her friends arguing and pulled over onto the hard shoulder. She set off driving again before pulling back onto the hard shoulder. She was not displaying her hazard lights. A passing car sounded his horn at them as they had a car door open near to the highway. This time the vehicle was on the hard shoulder for about fifteen minutes.

“L” was driving a truck which, for some reason, swerved across the lanes and struck A’s car on the hard shoulder. One of A’s passengers was killed, and “A” and another passenger were seriously injured.

“A” was prosecuted on the basis that she was ‘driving’, that the driving was dangerous and that it was a contributory factor in the collision.

The Trial

The first trial judge accepted the defence argument that the chain of causation was broken.

In his judgment, it was not reasonably foreseeable that a third party, at 4.30am, in light traffic, would be so distracted that he would suddenly career across three lanes onto the hard shoulder. He was satisfied that L’s driving was a new and intervening act that broke the chain of causation.

“A” was undoubtedly the driver of her car, even though it wasn’t moving. It was also arguable that what she did was dangerous as she should not have stopped on the hard shoulder, other than in an emergency.

As the judge took this decision, known as a terminating ruling, the case did not go before the jury.

Prosecution Appeal

The prosecution appealed that decision saying that the jury should consider these issues. They argued that the prosecution just had to show that A’s driving was a cause, not the cause.

The Court of Appeal decided that the judgment was wrong. The law did not require that the particular circumstances should be foreseeable. What had to be sensibly anticipated was that another vehicle might leave the carriageway and collide with the parked car.

The case was sent back to the Crown Court for “A” to stand trial for the charge of causing death by dangerous driving.

How can we help?

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

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Sentencing outside of the guidelines

Sentencing is a complex process. Consequently the courts are provided with guidelines by the Sentencing Council. These assist in determining the appropriate sentence for a wide, and ever-expanding, range of offences.

The guidelines provide guidance on factors the court should take into account that may affect the sentence given.

Different levels of sentence are set out based on the harm caused and how blameworthy, or culpable, the offender is.

Once the level of harm and culpability are decided, the person sentencing is provided with a sentencing range.

That range could be a fine up to a community order, or, for example, a range of two to six years’ imprisonment.

Do courts have to sentence within the “range”?

Section 125(1) of the Coroners and Justice Act 2009 makes it clear that every court must follow any relevant sentencing guideline:

“unless the court is satisfied that it would be contrary to the interests of justice to do so”.

In addition, a Judge is entitled to determine that a case falls within a higher category, without actually departing from the guideline in accordance with section 125.

An example case

Anthony Owen was convicted of burglary with intent to steal, and he was sentenced to nine years’ imprisonment.

The conspiracy was in relation to commercial premises where it was intended that four trailer units filled with tobacco would be stolen. The value of the goods would have been in the region of £12 million.

Owen was aged 64 at the time he was sentenced and had some convictions, although they were old and therefore ignored.

The maximum sentence for a non-dwelling burglary is ten years.

In Owen’s case, the judge decided it was a case of greater harm and higher culpability. This meant it was a category one offence, which provided a range of one to five years.

The Court of Appeal agreed that this was a case where it was appropriate to go outside of the sentencing levels in the guideline.

It was a serious offence, with high culpability in a number of different respects. Although Owen wasn’t a ringleader, he was integrally involved. The trial judge had been in a good position to assess his role.

Having considered all relevant factors, the Court of Appeal decided that the judge had adopted too high a starting point. A sentence of seven years and six months was substituted.

The substituted sentence was still outside of the sentencing range as although there had been no financial loss; the loss would have been substantial. The judge had also rejected the suggestion that there had been poor planning and execution. The Court of Appeal saw no reason to interfere with that assessment.

Complexity in sentencing

The above case illustrates very well just how complex sentencing can be, even when we have guidelines to assist. In some cases, we can give very accurate sentencing predictions. However, in some instances there will be a margin of appreciation that can be very wide.

We scrutinise all sentencing decisions with great care and will not hesitate to advise on appeal when the Judge has stepped outside the acceptable range. Our detailed knowledge of the guidelines and caselaw means that you can always be assured of a fair outcome.

How can we help?

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

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Expert evidence

Expert evidence is used to provide information to the court, which is likely to be outside of the knowledge of the magistrates, judge or jury. Opinion evidence can be given if the expert is qualified to provide such an opinion.

Duty of an expert witness

An expert is under a duty to help the court by giving opinion which is objective and unbiased in relation to matters within their expertise. The duty is one which is owed to the court rather than the party who is providing the instructions.

The Criminal Procedure Rules require an expert to provide certain information such as any potential conflict, an appeal which has been allowed due to a deficiency in their evidence, convictions or adverse judicial comment.

Will an expert always be heard?

Applications can be made to exclude expert evidence if it is argued its prejudicial effect outweighs its probative value. The courts have also indicated a willingness to exclude the evidence if it is insufficiently helpful to a jury in reaching its conclusions. The court can also reject evidence, for example, if it decides that the witness has not properly established his independence or has not complied with his duty to the court.

We will not hesitate to challenge experts called to give evidence by the prosecution if there is a prospect of exclusion.

What types of expert are used in criminal cases?

There is a wide range of relevant expertise in criminal law. This could include forensics such as DNA and fingerprints or footwear marks, facial recognition where identification from a still or CCTV is in issue, medical experts in respect of injuries, psychiatric or psychological reports, autopsies or gait analysis.

How do you find an expert?

We have a register of tried and tested experts in every discipline. An expert witness is not just an expert in their field, they have additional skills such as report writing and experience of giving evidence in court.

It is important, therefore, to get the right witness for your case and we can do this for you.

How can we help?

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

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