Consultation on the Code for Crown Prosecutors
The CPS has announced its consultation on revisions to the Code for Crown Prosecutors.
The Code was last updated in 2004; the proposed changes take into account various developments in the law, as well as the forthcoming merger between HMRC and the CPS to form the principal public prosecution service for England and Wales. The merger is scheduled to take place in January 2010, with further consolidation of the prosecution service in 2011.
The consultation consists of a draft of the proposed new code together with seven questions on which views are sought. We have set out below those areas of the proposals that may be of interest to clients. The proposals include the extension of the public interest factors both those in favour of and those against prosecution.
Factors in favour of prosecution
It is proposed to extend the factors in favour of prosecution to include circumstances where:
- A community, be it geographical, with common characteristics, or shared interests, has expressed concern about the prevalence of the offence;
- The offence has resulted in serious financial loss to an individual, corporate body or society.
Public interest factors against prosecution
With regard to the public interest factors against prosecution, these have been extended further to include circumstances where:
- The defendant could not personally obtain or assist another to obtain any advantage or gain from committing the offence;
- The actions of the defendant did not influence others to commit an offence or influence their behaviour generally;
- A prosecution might interfere with the investigation or prosecution of another criminal offence;
- Prosecution would undermine a promise made to the defendant [either by the investigator or the prosecutor] that he or she would not be prosecuted, although this does not include any case where the investigator or prosecutor has only informed the defendant that proceedings will not be brought or continued against him.
This last factor is currently dealt with by way of case law with defendants in such cases having to show that a prosecution contrary to a prior undertaking is an abuse of process. The inclusion of this factor within the Code may make it easier to argue that a prosecution should not ensue at an earlier stage. However, the current drafting could give rise to confusion, in particular the interpretation of what constitutes a "promise" made to the defendant as opposed to a situation in which a defendant is "informed" that no proceedings will be brought.
It is also worth noting that although the public interest factors against prosecution in the current Code include certain circumstances where the defendant is/has already been sentenced, the proposals aim to extend this to cases where the defendant:
- has already been given an appropriate out-of-court disposal for the offence which remains in place or which has been satisfactorily discharged;
- has already been subject to any appropriate regulatory, punitive or relevant civil penalty proceedings which remain in place or which have been satisfactorily discharged.
The aim here seems to be to prevent duplicity.
Another of the proposed public interest factors against prosecution is where:
- the actions of the defendant, although sufficient to come within the definition of the crime, were of minor importance or of little influence in the overall commission of the offence.
This may provide a good basis for challenging a decision to prosecute where an employee who has very little influence in the day-to-day management of a business or its operations is being prosecuted. We often encounter cases where the culpability of the employee is minimal - although on the face of it he has committed an offence, he only did so because at the time he was working within the confines of his employer's system.
The deadline for responding to the consultation is 11 January 2010, click here to view the document.
Should you have any queries or wish to discuss the matter further, please contact:
0845 415 6038
0845 415 6037
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