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:
- the offence committed is serious;
- the suspect’s past record suggests that there are no suitable alternatives to prosecution; and
- 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:
- 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.
- 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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Covid 19 Lockdown – the law; What can and can’t you do?
This article was posted in March 2020, shortly after the initial restrictions were imposed.
There has been much confusion about what you can and cannot do during the current lockdown. The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 imposes several restrictions.
Since the lockdown began last week, the police have been keen to enforce compliance, even calling out the MP Stephen Kinnock over social media for visiting his father on his birthday.
Given the importance of protecting the NHS, it is likely that the police may take a harder line as the crisis worsens.
Restrictions on movement during the lockdown
During the emergency period, no person may leave the place where they are living without reasonable excuse.
A reasonable excuse includes the need—
(a) to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money, including from any business listed in Part 3 of Schedule 2.
(b) to take exercise either alone or with other members of their household;
(c) to seek medical assistance, including to access any of the services referred to in paragraph 37 or 38 of Schedule 2;
(d) to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006(1), to a vulnerable person, or to provide emergency assistance;
(e) to donate blood;
(f) to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living;
(g) to attend a funeral of—
- a member of the person’s household,
- a close family member, or
- if no-one within sub-paragraphs (i) or (ii) are attending, a friend;
(h) to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;
(i) to access critical public services, including—
- childcare or educational facilities (where these are still available to a child in relation to whom that person is the parent, or has parental responsibility for, or care of the child);
- social services;
- services provided by the Department of Work and Pensions;
- services provided to victims (such as victims of crime);
(j) in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child;
(k) in the case of a minister of religion or worship leader, to go to their place of worship;
(l) to move house where reasonably necessary;
(m) to avoid injury or illness or to escape a risk of harm.
The word ‘need’ prefaces the exceptions and this implies an added necessity test.
Requirement to close premises and businesses during the emergency
A person responsible for carrying on a business which is listed in Part 1 of Schedule 2 must—
- during the emergency period—
- close any premises, or part of the premises, in which food or drink are sold for consumption on those premises, and
- cease selling food or drink for consumption on its premises; or
- if the business sells food or drink for consumption off the premises, cease selling food or drink for consumption on its premises during the emergency period.
The provisions in relation to business closure are particularly complex and a number of police interventions have already been made since the lockdown began. Please contact us for accurate up to date advice if you are unsure as to your legal obligations.
Restrictions on gatherings during the lockdown
During the emergency period, no person may participate in a gathering in a public place of more than two people except—
- where all the persons in the gathering are members of the same household,
- where the gathering is essential for work purposes,
- to attend a funeral,
- where reasonably necessary—
- to facilitate a house move,
- to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006,
- to provide emergency assistance, or
- to participate in legal proceedings or fulfil a legal obligation.
Penalties
Breach of these emergency regulations can result in fixed penalties (of up to £960) and unlimited fines.
Adults must do all they can to ensure that children comply. Failure in that regard can itself result in prosecution.
Other enforcement measures can be taken concerning business premises and failing to comply with restrictions.
If you have received a fixed penalty that you wish to challenge or are being investigated or prosecuted for an alleged breach, our expert team are able to advise.
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.
Read MoreCovid 19 and Business Closure – Legal Obligations
This article was posted in March 2020, shortly after the initial restrictions were imposed.
At 2 pm on Saturday 21 March 2020, the Government introduced further measures to help fight the Covid 19 pandemic. A law came into force which forced the closure of some businesses. On 23rd March, the Government announced further measures, closing a number of other businesses.
This law was enacted by virtue of The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (and mirror regulations that apply in Wales). The statutory instrument was made in exercise of the powers conferred by sections 45C(1), (3)(c), (4)(d), 45F(2) and 45P of the Public Health (Control of Disease) Act 1984.
Which businesses must close?
Schedule 1 of the regulations state that the following businesses must close:
-
- Restaurants, including restaurants and dining rooms in hotels or members clubs.
- Cafes, including workplace canteens, but not including
- Cafes or canteens at a hospital, care home or school;
- Canteens at a prison or an establishment intended for use for naval, military or air force purposes, or for the purposes of the Department of the Secretary of State responsible for defence;
- Services providing food or drink to the homeless;
- Bars, including bars in hotels or members’ clubs.
- Public houses.
- Hair, beauty and nail salons, spas and massage parlours
- All retail premises, with a number of exceptions;
- Supermarkets and other food shops;
- health shops;
- pharmacies including non-dispensing pharmacies;
- petrol stations;
- bicycle shops;
- home and hardware shops;
- laundrettes and dry cleaners;
- bicycle shops;
- garages;
- car rentals;
- pet shops;
- corner shops;
- newsagents;
- post offices;
- banks.
- Outdoor and indoor markets, except those offering essentials, such as groceries and food
- Auction houses
- Car showrooms
- Hotels, hostels, BnBs, campsites and boarding houses for commercial use, although keyworkers can stay there
- Caravan parks/sites for commercial use, unless used as a primary residence
- Libraries
- Community and youth centres
- Places of worship for services
- Cinemas, Theatres and Concert Halls.
- Nightclubs.
- Bingo halls, casinos and betting shops.
- Museums and galleries.
- Indoor skating rinks.
- Indoor fitness studios, gyms, swimming pools or other indoor leisure centres.
- Enclosed spaces in parks, including playgrounds, sports courts and pitches, and outdoor gyms or similar
What is the penalty if businesses defy the law?
An unlimited fine can be imposed on the business and any officer of the company who has consented or connived etc. so keeping the business open (regulation 3).
There are, however, other powers available to local authorities who are in charge of policing compliance with these regulations.
Businesses that breach them will be subject to prohibition notices, and potentially unlimited fines. As a further measure, and if needed, businesses that fail to comply could also face the loss of their alcohol license. More draconian powers are also available under the Public Health (Control of Disease) Act 1984, and further powers will soon be law when the Coronavirus Bill becomes law.
In some cases, injunctive relief may be granted, the breach of which could be punished by up to 2 years imprisonment.
There are also reputational issues that need to be considered.
We can advise on all aspects of criminal and regulatory law, if any business is uncertain as to its legal obligations during this worrying time, please do not hesitate to get in touch with us.
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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