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July 24, 2012

Crown prosecutors looking at new charging guidelines

Kyle sent along this notable new criminal procedure article from the The Telegraph, which carries this headline and subheadling: "Criminals could avoid court in legal shake-up: Criminals arrested for offences such as minor assaults, theft and fraud could escape prosecution in the biggest shake-up of charging guidelines for 20 years." Here are excerpts from an interesting article raising interesting policy questions faced by all modern, advanced criminal justice systems:

Prosecutors would take no further action on suspects if they do not believe it is “proportionate” to take them to court, under proposals published yesterday.

It would mean factors such as cost and the length of a likely trial being taken into consideration when deciding whether to charge an offender. Prosecutors would even be asked to weigh such issues against the likely punishment a criminal would get if convicted.

It is the second time in three years that Keir Starmer, the Director of Public Prosecutions, has suggested such a move to bring “common sense” to prosecutions. It would be a dramatic shake-up of the so-called prosecutor’s code, which has been in operation since the 1950s, and would restore a “proportionality test” for the first time since 1992.

John Fassenfelt, chairman of the Magistrate’s Association, warned it could encourage prosecutors not to proceed in “more and more cases”.

The Code for Crown Prosecutors already requires them to consider whether it is in the “public interest” to charge a suspect. That includes considering factors such as the impact and harm the offence causes, the age of the suspect and previous offending.

Mr Starmer now wants to add an additional factor where prosecutors should consider “whether prosecution is proportionate to the likely outcome”. It would mean considering the “cost” to the Crown Prosecution Service and justice system “especially where it could be regarded as excessive when weighed against any likely penalty”.

The code stressed that must not be the only reason for not proceeding, but adds: “Cost is a relevant factor when making an overall assessment of the public interest.” Mr Starmer suggested that could mean offences that are likely to end in an absolute discharge by the court. However, the CPS was last night unable to expand on other scenarios as each would have to be considered on its merits.

It raises the prospect of low-level crime, such as a very minor assault or theft, being kept out of the courts. Prosecutors would also need to consider “effective case management” to avoid “excessively, long and complex proceedings”. That could mean individuals on the edge of a complicated fraud case not being charged so prosecutors could concentrate on the key participants in a shorter trial....

The proposed changes to the code are now open to consultation until October. Max Hill QC, chairman of the Criminal Bar Association, said: “If the intended meaning of proportionality is that expensive cases are only 'worth it’ if they lead to long prison sentences, it would be wrong.

“The case of John Terry [the footballer cleared of racism last week] was expensive, by the time court time and defence costs were factored in, but there were very clear public interest reasons for bringing it. Fortunately, I do not interpret the consultation to be proposing that we refrain from prosecuting such cases.”

The proposed changes are part of an attempt to streamline the public interest test in charging decisions, which is now narrowed down to seven broad questions, covering the issues of harm, age and proportionality, rather than a long list of specific factors....

Mr Starmer said: “The CPS handles 900,000 defendants each year ... and I want to see a stronger, smarter CPS, continuing to prosecute robustly and bringing offenders to justice for the good of the public and victims. I think this new code will help us meet that aim.”

July 24, 2012 in Current Affairs | Permalink


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Hooray for the UK, hopefully the US will consider such an example, although I know that is just a pipe dream. Americans are generally hell-bent on revenge and prosecutors are pressed to 'get a conviction.' Yet retributive views of justice are incredibly problematic. It disgusts me that one of the only areas the US leads the world in is number of incarcerated individuals. I am an advocate of prosecutorial discretion in the criminal justice system. Police officers make decisions every day about whether or not to press charges against offenders...how is prosecutorial discretion any different? Resource spending on trials and punishment should be of concern. Our prisons AND court system are both overwhelmed, and something has to be done! This is not to say that criminal behavior should be ignored, or that people should get away with criminal activity. But there is nothing wrong with prioritizing crime and conserving resources to fight particularly abhorrent crimes. Implementing ADR strategies for lesser offense crimes would serve victims, offenders, the system, and the community in a much more beneficial way.

Posted by: Tracey | Jul 26, 2012 9:33:13 AM

While I agree that something should be done about overcrowded prisons, I do not think that this sort of prosecutorial discretion will necessary promote any of the aims of the criminal justice system. I would agree with Max Hill in the statement that cases that lead to lengthy prison sentences are the only ones "worth" prosecuting. Furthering prosecutorial discretion could very well lead to many problems, especially when the discretion is based on issues such as cost and likelihood of being convicted. This sends the message that crime is OK, or at least will not have any repercussions, if the crime isn't "that big" or "likely to lead to a conviction". This really screams to criminals, "It's OK to steal, as long as you don't steal too much, and it's OK to aid in a fraudulent scheme as long as you're not "too" involved". Additionally, this will lead to further problems with crime statistics; if crimes that are deemed "too small" are not fully investigated, tried, and sentenced, then crime statistics will fail even more to show rates of these crimes...rates that may very well increase if they are no longer prosecuted.

A more satisfactory response to overcrowding in prisons may be to instead allow prosecutors and judges to use other forms of discretion when it comes to suggesting and imposing sanctions on defendants found guilty of "lesser" crimes. By using alternative forms of punishment (i.e. fines for decriminalized lawbreaking such as speeding, community service, etc.), the criminal justice system will be able to expedite justice while still remaining accountable. By this I mean that prosecutors and judges would still be able to bring forth and hear "petty crimes" instead of being able to waive them without public scrutiny.

Posted by: Katie | Jul 29, 2012 11:28:29 AM

How does having prosecutorial discretion equal sending the message that crimes like stealing are ok?

Posted by: Confused | Jul 31, 2012 10:42:17 AM

If prosecutors are given broad discretion, and base this discretion off of if it would be too costly to bring the case forward, then prosecutors will not be bringing "less serious" crimes such as theft forward. It would cause a lot of dissonance if they don't bring the cases, but don't change the law. In other words, if prosecutors stop trying crimes that are considered to be less serious, criminals will have no reason not to steal because they will not be prosecuted. This is relatable to the decriminalization of speeding, although that discretion comes from the police and not the prosecutors. If the police stop pulling over people who go 5 MPH above the speed limit, people will not worry about going 5 MPH over the speed limit because they know that they will not be pulled over.

Posted by: Katie | Jul 31, 2012 12:31:10 PM

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