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Criminal solicitors hit back at CPS code consultation

27 October 2009

The Crown Prosecution Service has launched a consultation to amend the prosecutors’ code which, among several changes, would ask prosecutors to take account of the impact of crime on communities.

The proposed ‘community’ test follows on from Keir Starmer’s plan for the CPS, unveiled on 23 July, ‘Setting the Standard’, which placed particular emphasis on involvement with local communities.

Added to the list of elements in favour of prosecution will be the fact that “a community, either geographical, or of common characteristics, or of shared interests, has expressed concern about the prevalence of the offence”, as set out in a new section 4.12.

A spokeswoman for the CPS said the prosecuting body has been working with communities for some time, taking feedback from schools and neighbourhood schemes, but that the new factor would be wider.

The reference to “common characteristics” or “shared interests” would formalise the CPS’s and police’s work with minority groups and help tackle hate crime such as homophobic violence.

Rodney Warren, senior partner at Rodney Warren and Co, and director of the Criminal Law Solicitors’ Association, agrees that the police and CPS have to be alert to what local people think, but argues that the concept of ‘community’ is dangerously ill-defined.

According to Warren, the CPS should make decisions in the interest of the community as a whole and be satisfied that justice is being seen to be done for the benefit of the community. This should not mean that the community has a say in prosecutions, particularly as there would be difficulties in identifying ‘the community’ for such purposes.

“The community must be the place where justice is seen to be done, but if there’s some sort of nebulous capacity for groups to influence the justice system, that’s contradictory with the idea of independence of the justice system.”

Warren is also doubtful about another new test involving a proportionality element. A new section 4.10 would require prosecutors to consider “whether a prosecution is a proportionate response to the specific offending when deciding the most appropriate course of action”.

The CPS said this would only apply to a very small number of cases, for instance a situation where an offender was appearing in court in the morning over one offence and was found in the afternoon committing another, minor offence.

“If what the new code requires is that prosecutors take a common sense approach, then few people will disagree with that,” Warren says. “But if proportionality goes further and means prosecutors should look at the consequences of the alleged offence, then this trespasses into the area of the sentencer.

“The sentencer’s role is to decide the penalty that’s appropriate, including discharge. I’m not comfortable with that becoming part of the role of the prosecutor,” he continues.

The risk of such an approach, according to Warren, is that it could result in prosecutions not being started on the basis of economic factors.

“Maintaining public confidence is a very important part of the CPS’s role,” he says. “This would be undermined if decisions were based only on economy – we need to see economy with justice; decisions to prosecute or not cannot be based on economic grounds.”

For similar reasons, Warren also warns that the proposed greater use of out-of-court disposals could further affect public confidence in the criminal justice system.

“Justice has to be seen to be done, and this includes appearing in court,” he comments.

Such an approach could also have adverse consequences for the individuals concerned.

“Not only are cautions and fixed penalties disclosable, they also imply that the defendant has admitted the offence. That’s happening more and more, and we’ve not seen the consequences yet.”

The consultation is open for 12 weeks, closing on 11 January 2010.

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