Ken Macdonald QC
CPS Headquarters
50 Ludgate Hill
London
EC4M 7EX

27 April 2004

Dear Mr Macdonald,

Review of Code for Crown Prosecutors

Thank you for sending us a copy for comment. Unfortunately, there are so many consultations at present that it is impossible to respond in the detail that we would wish.

We would like to make some general points:

1.We would welcome the change to decisions by lawyers rather than police on charging but would be very concerned that this should not mean less prosecutions and/or an increase in undercharging ie using a lesser offence to ensure a guilty result. This is particularly likely in Road Traffic fatality cases, where the gulf between section 1 Causing Death by Dangerous Driving and section 3, the most likely charge, Driving Without Due Care and Attention, is the difference between a prison sentence and licence points and a fine. We would ask that you take the time to read our response to the Glidewell Review and to HMCPSI Thematic Review of Fatal Traffic Cases and our response to the previous review of your Code.

2. We have considerable concerns about proposals to dispose of cases without a prosecution. It is considered a basic right to have your case determined in open court but it will always be tempting to take an alternative option without a formal process. It is important that the extent and severity of criminal behaviour is in the public arena and treated as crime not an administrative matter.

If people are allowed to see low level criminal behaviour as not 'really criminal' the trend will be to treat more serious crimes as more trivial, too. It is not in the public interest to decriminalise low level crime, although in the short term it may be cheaper. All the evidence is that zero tolerance makes our streets and roads safer for everyone.

3. The Crown Prosecution Service should be a prosecution service not an administrative process for pushing cases through as quickly and cheaply as possible with plea- bargaining, alternatives and clerical staff processing cases instead of lawyers.

4.CPS Charging Standard on Traffic Offences is long overdue for review.

5.The Code is drafted in such general terms and capable of a wide range of interpretation in individual cases, that the way that it is interpreted is more important than the words used. Sufficient evidence can be very little if an attractive young woman or child is murdered and the Media keep up the pressure but require two or three independent eye witnesses in a road traffic case.

Questions

Q1 Yes.The sufficiency of evidence test must be based on PACE 1984 and ECHR Article 5.It must be sufficiency of evidence to charge not to secure a conviction ie much less stringent than the current CPS criteria, since detailed evidence will not be available at an early stage.6.12 refers to the police not wishing to caution, will they still be able to do so?

Q2 .Section 6 is not biased towards prosecution, absolutely the reverse.

Decisions should be offence based not outcome based. If the offence is one which merits prosecution, the public interest is best served by a prosecution and the alternatives should not be used. Examples would be repeated offending or serious instances. Our concern is also that under 6.5f distress to victims and witnesses is and will be in the future used as an excuse for a cheap alternative process. It is very distressing to give evidence in cases of death or injury but there is no alternative if criminals are to be brought to justice.

The reluctance to prosecute leaves us, as with Ian Huntley, people without significant records but who are very likely to have committed very serious crimes, at large in the community and the authorities /police without a legitimate reason to treat them as dangerous.

Para 3.18 refers to the likelihood of an order on conviction. CPS should base decisions on the bigger picture of the public interest not on likely outcomes or expediency.

Q3 Yes. It is appalling if it is a fact that a whole community can be affected and no prosecution brought.

Q4. Decisions should be primarily offence based not outcome based The point should be that it is in the public interest to prosecute someone who is cheating the whole community by cheating the Inland Revenue, not that a lot of money may be extracted from him. Is it less criminal to be an unsuccessful criminal?

Q5. TICS. The problem as we see it, is that the court will not give a greater sentence for a longer list of crimes. It is thus considered a 'waste of time' charging them.

3.22 is gibberish. It really means that the various authorities are able to produce statistics, which show them as performing better than they are. This does not benefit the public; it misleads them.

Q6 The lumping together of the views of the victims and the bereaved with the agreement with the defence shows very clearly the depth of commitment to 'put the victim at the heart of the criminal justice system'.

Victims need a proper role within the system and access to legal advice before being asked to give a statement or VPS or express an opinion or take part in any alternative process. Instead they are drawn into a situation, of which they do not understand the full implications, when distressed and in shock

Victims are frequently used as an additional tool to obtain a conviction or to support a CPS/Police decision. Where a lesser charge is decided upon, victims are only consulted and listened to if they agree with accepting a lesser plea. They do so, still in a state of shock and not wanting to appear bitter and revengeful. When they see the perpetrator, a few months down the line, still driving dangerously and getting on with his life, while their child is dead and gone for ever, they may ponder on 'their' decision subtly manipulated by the authorities.

Q7 The heading is curious; neither defence nor prosecution have a role in sentencing. They must however have equal opportunities to draw the attention of the sentencer to relevant issues. Where Sentencing Guidelines set brackets for levels of severity of an offence, the prosecution must make a case for the appropriate sentencing bracket.

The defence will bring forward mitigating factors in their plea but the prosecution must have a fair opportunity to challenge the plea and ensure that the VPSS and any other relevant material including aggravating factors, (particularly if additional possible charges, arising out of the same incident were not brought) and the effect on the victims and bereaved. Unless there is a level playing field between defence and prosecution, an adversarial system is ineffective as a means of obtaining justice.

At Appeal, the prosecution are rarely represented and this cannot give an equitable result.

This is also a matter of human rights - the right to a fair trial. Where a member state uses an adversarial system, there must be equality of arms.

Q8 Yes. This is a question, which requires careful thought, considerable knowledge and an international protocol. It cannot be answered by consultees, adequately.

Q9 The Victims Code of Practice does not cover all victims eg injured victims of Traffic offences. CPS responsibilities under its own Code to put all relevant evidence before the court includes a responsibility in respect of all victims, whether included under the Code or not. Similarly with clauses 6.7 and 6.8.

6.7 and 6.8 are incompatible .How can a victim express an opinion and CPS take it into account, if he is only told about decisions after the event ?

Q10 Amendments need to be made to reflect Acts but not legislation at the Bill stage.

I do not think 7.1 and 9.1 take account of Either Way offences, at present.

Yours sincerely

Zoe Stow

Chair