BCL Partner, Ellen Peart and associate David Hardstaff, consider recent revisions to the Crown Prosecution Service’s Code for Crown Prosecutors and ask whether more needs to be done to reform charging practice if the challenges facing the criminal justice system are to be met.

On 24 October 2018 the Crown Prosecution Service (CPS) published its revised Code for Crown Prosecutors (the Code), replacing the previous version which dates back to 2013.

The revised Code, which was published without much fanfare the week before Alison Saunders’ term as Director of Public Prosecutions (DPP) comes to an end, was an opportunity for the CPS to make a bold statement concerning its future role within the criminal justice system. Instead, the revisions are modest and unlikely to do much to address the issues that have contributed to the CPS’s nearing crisis point earlier this year.

The most significant revisions include the following:

• Under the revised guidelines on disclosure, prosecutors must consider whether there is any material held by the police or material that may be available which could affect the decision to charge a suspect with any crime.
• For the first time, prosecutors must take into account the degree to which a suspect benefited financially from an alleged offence when deciding whether to charge them. This change is aimed at assisting the court in recovering any assets such as homes, luxury cars, designer clothes, jewellery or money.
• Efforts have been made to simplify and update the Threshold Test, to make sure it is only being used where completely necessary and to avoid cases being charged prematurely. The Threshold Test allows a suspect who presents a substantial bail risk such as a serious risk of harm to the public, to be charged and therefore held in custody in the expectation that further evidence will be produced by the police.

The five year period since the Code was last revised has been perhaps the most challenging and turbulent since the CPS’s establishment in 1986. A sharp spike in the number of reported sexual and online offences in conjunction with funding cuts and a huge increase in digital evidence, has pushed the CPS to its limits and beyond. Earlier this year the consequences of this perfect storm were laid bare when a number of near miscarriages of justice were exposed, including the cases of Liam Allan and Danny Kay. At the time, there was a reluctance on the part of the CPS to admit that it was unable to properly perform its function. However, in her first interview since the publication of the revised Code, Saunders accepted that the service is struggling through lack of resources. Early engagement between the CPS, the police and defence amounting to a ‘system-wide, early-doors approach’ was needed. The revisions to the Code are a nod to this sentiment however they fall short of offering the more radical reform that most within the criminal justice system feel is necessary.

The new requirement that prosecutors consider whether there is further material in the possession of the police or material available which could affect the decision to charge a suspect is common sense and no doubt partly a response to the 2017 findings of HM Crown Prosecution Service Inspectorate that the police are routinely failing to properly record material generated throughout the course of investigations. However, this revision does not place a responsibility on prosecutors to actively engage with the defence teams in the event that further material of relevance may be identified.

While the revised Code makes a number of references to ‘considering’ the defence case, or what the defence case may be, there is little by way of positive encouragement of early engagement with defence teams. While there have been discussions of earlier engagement between parties in the context of the recent disclosure scandal, this has been with a view to engagement taking place post-charge but before pleas are entered. The revised Code maintains the position that the police effectively act as a conduit between prosecutors and the defence until a charging decision is reached. Perhaps it is time that this barrier between the parties was dismantled. Currently, the defence play only a limited role prior to charging decisions being reached. This is primarily through lack of access to evidence and an absence of transparency in the investigative process. Allowing the defence earlier access to evidence could encourage a more streamlined process and is unlikely to result in the provision of material that would not fall to be disclosed at a later stage in any event. Debate concerning the CPS’s shortcomings inevitably turns to the question of resources. Surely then it is preferable that cases which are destined to fail are identified at the earliest opportunity rather than at an advance stage in proceedings by which point a considerable amount of time and resources have been expended. On the contrary, the revisions concerning early identification of cases that may result in the recovery of the proceeds of crime through confiscation proceedings suggests a worrying move towards financial motivation in some charging decisions.

While the Code is of course just one part of the CPS’s constitution, it is the gateway for all charging decisions and therefore a crucial tool in avoiding ill-conceived prosecutions and in ensuring that cases which proceed do so with direction from the outset. There is perhaps an unspoken reluctance to facilitate engagement between prosecutors and defence teams at this early stage for fear that it represents a dilution of our fiercely adversarial system. However, given the Herculean challenges facing the criminal justice system, this is exactly the sort of wider question we must be asking.

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