Monday, 22 February 2010

New Code for Crown Prosecutors

A new Code for Crown Prosecutors came into force 22nd February 2010.  The Code is made by virtue of the Prosecution of Offenders Act 1985 s.10.  On this occasion it has been issued in 12 languages.

The two-stage test has been retained:

1] Is there enough evidence (i.e. a realistic prospect of conviction of each suspect on each charge);

2] Is a prosecution in the public interest.  If test [1] is met, a prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal.

Section 7 of the Code deals with Out of Court Disposals.  "The prosecution service is responsible for deciding whether to offer an offender a conditional caution in certain cases. In such cases, the Full Code Test must be met. Prosecutors will offer a conditional caution where it is a proportionate response to the seriousness and the consequences of the offending and where the conditions offered meet the aims of rehabilitation, reparation or punishment within the terms of the Criminal Justice Act 2003."

"A conditional caution is not a criminal conviction but it forms part of the offender’s criminal record and may be cited in court in any subsequent proceedings."

If extensive use were to be made of conditional cautioning then a very considerable number of offenders might never see the inside of a Magistrates' Court unless proceedings are brought for breach of the caution.

Another "out of court possibility" is a simple caution and the CPS may suggest that the Police issue a Penalty Notice for Disorder.

In December 2009, a review was announced of the use of out of court disposals.  The review will report in March. 

Section 11 is also interesting.  It deals with the prosecutor's role in assisting a sentencing court and states that the prosecutor may assist the court in determining the appropriate "sentencing range".
This document is required reading for anyone seriously interested in the criminal law.


  1. A BBC summary of an interesting case based on the recently updated code is here

  2. If the CPS could be assured of applying the same level of consistency as the SGC tries to apply to court sentencing then this scheme might be seen to be credible. In my court (Mags) we have had to deal with two late teenage girls involved in a glassing - the victim wil be scarred for life and the perpetrator had to write a letter of apology within one month. The police like them as there is less work than putting together a full file for court, which is always compiled on the basis of a not-guilty plea invoking sophisticated challenges based on points of law. Fine for the tricky stuff, but not for a shoplifter caught in the act and admitting everything. What happened to the rationale that a crime is not just an affront to the direct victim, but to society as a whole? A caution, of whatever kind, doesn't come close. It would also be good if the systems were joined up. A caution received in police force area A is unknown to force area B. So a thief in Barnet (north London) who moves to Camden (ten minutes away, also in north London) can have two cautions the same day for the same matters. And many do...

  3. Re the case referred to by Justice of the Peace - (theft of bananas). Anyone charged with theft may, since it is an either-way offence, elect for trial in the Crown Court. Hence. the CPS cannot properly consider this possibility in deciding whether to charge since it is a possibility in ALL theft cases. Despite some proposals (notably from the Magistrates' Association) to make minor theft summary only, Parliament has retained this right. Personally, I hope that this continues.

    The interesting question is where there is a choice of charges based on a particular set of facts. As an example, in some situations a charge of affray (Public Order Act 1986 s3 - either way) or threatening behaviour (s4 - summary only) might be possible. To prosecute under s4 would be cheaper but if the seriousness of the case merits s3 then that is what the CPS ought to charge though they might end up being criticised by a judge if the case takes up Crown Court time! Tough: but they have to do what they see as the "right" thing. They may also get criticised if they "undercharge".

    I agree that a caution should not normally be used for something as serious as a "glassing" which scars the victim (for life). [It would require something very exceptional to justify even a conditional caution for such a matter]. This is the fear many have of conditional cautioning. It will be used too much and will keep some serious cases out of court.

    I noted this in the new Code:

    A prosecution is more likely to be required if:
    a) ....
    b) a conviction is likely to result in an order of the court in excess of that which a prosecutor is able to secure through a conditional caution;
    c) ... etc.

    This is one factor in the non-exhaustive list but it might lead prosecutors toward conditional cautions in quite a number of cases.

    Conditional cautions are not "convictions" (though the person has to accept guilt) but they go on the person's record. The same applies to simple cautions. Either can be brought up in court in subsequent proceedings and either can amount to "bad character" evidence. In relation to some forms of employment the fact of a caution will have to be revealed and would come up on any enhanced criminal records search. People often accept cautions quite readily and I have known quite a few who came to regret doing so.