Thursday, 3 January 2013

Crown Prosecution Service ~ Guidance material

A look at two sets of guidance issued by the Crown Prosecution Service (CPS): (1) Joint Enterprise and (2) Communications via social media.

(1) Joint Enterprise

Just before Christmas 2012, the CPS issued important guidance on how charging decisions will be made following offences involving two or more participants in what is known as "joint enterprise."

Joint enterprise guidance 20th December 2012

Keir Starmer QC said: "This is a controversial and complicated area of the criminal law, so I want the public to understand how we take decisions to charge in these cases. This guidance for prosecutors explains the case law and sets out the key tests that we must apply to each case. What this guidance cannot do is change the law, which is a matter for Parliament and the courts.

In particular, this guidance will assist prosecutors in deciding whether, and with what offence, suspects with minor roles in group assaults should be charged. Accidental presence at the scene of a crime or mere association with an offender is never enough to create liability - a suspect must assist or encourage the offence in some way. This is the fundamental distinction drawn by prosecutors and the courts in cases of joint enterprise, and our guidance makes this clear."

(2) Communications and social media

Interim guidelines on prosecuting cases involving communications sent via Social media

This has been an area where a number of prosecutions have appeared to be particularly heavy-handed - e.g. the Twitter Joke case of Paul Chambers.

This interim guidance is open to public consultation until 13th March 2013. Introducing the interim guidance, the Director of Public Prosecutions - Keir Starmer QC - said:

"These interim guidelines are intended to strike the right balance between freedom of expression and the need to uphold the criminal law.

They make a clear distinction between communications which amount to credible threats of violence, a targeted campaign of harassment against an individual or which breach court orders on the one hand, and other communications sent by social media, e.g. those that are grossly offensive, on the other.

The first group will be prosecuted robustly whereas the second group will only be prosecuted if they cross a high threshold; a prosecution is unlikely to be in the public interest if the communication is swiftly removed, blocked, not intended for a wide audience or not obviously beyond what could conceivably be tolerable or acceptable in a diverse society which upholds and respects freedom of expression.

The interim guidelines thus protect the individual from threats or targeted harassment while protecting the expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some and painful to those subjected to it."

See the CPS statement about the guidelines

This seems to be the age of "guidelines" and whether the social media guidelines are actually required is a moot point.  In a podcast on CharonQC's UK Law Tour, John Cooper QC (who defended Paul Chambers) argued that the guidelines are not needed - the test should be "common sense" applied to the Act in question.  The virtue of "common sense" has appeared to be sometimes absent when the law has had to decide how to deal with certain ill-advised comments on media such as twitter and facebook. A further point is that, all too often, offences in Acts of Parliament are not particularly clearly drafted and this inevitably leads to variations in charging and eventually to judicial decisions on the meaning of the Act.  The Twitter Joke appeal judgment is now a precedent on section 127 of the Communications Act 2003.

See the earlier post on Tweets, Facebook ~ Go to Jail (12th October 2012)where the cases of Azher Ahmed and Matthew Woods are considered.

1 comment:

  1. The libertarian lobby traditionally regarded joint enterprise - like conspiracy - as a tool of oppression, until it banged up two members of the gang which attacked Stephen Laurence, neither being the one who wielded the knife. Since then, the silence has been deafening.

    They similarly regarded the law of double jeopardy as a protection against prosecutorial misconduct - until it was a roadblock to the prosecution of those men if forensic science made sufficient advances to provide the evidence.

    I wonder whether the sacrifice has been worth it.