New rules will let criminals off hook The Telegraph

Published on 20 Oct 2009 under category: cubism

By Dan Hyde, Consultant at Cubism Law

As published in The Telegraph 20 October 2009

Criminals arrested for offences including assault, theft and fraud are to escape justice under the biggest shake-up of prosecution guidelines for 60 years.

The director of Public Prosecutions, Keir Starmer, announced yesterday that suspects would avoid any form of punishment, including a police caution, if action was not deemed “proportionate”.

For the first time, lawyers will have to weigh the cost and time involved in bringing a prosecution against the seriousness of a crime and the harm it has caused.

The guidance is intended to encourage “common sense” in the justice system. For example, a householder accused of assault when making a citizen’s arrest on a burglar could be forgiven.

However, senior lawyers said that it could also prevent justice being done because persistent criminals could escape punishment, even when there was overwhelming evidence against them. The proposals could apply to crimes including shop lifting, minor assault and criminal damage. Complex fraud prosecutions, which can be extremely long and expensive to pursue, could also be abandoned under the new test.

The guidance comes as the justice system is under severe strain from a backlog of tens of thousands of cases and the prisons are suffering record overcrowding.

Under current rules, in operation since the 1950s, the Crown Prosecution Service uses two tests to decide whether to bring charges against a suspect: is there enough evidence and is court action in the public interest? However, plans contained in an updated code for prosecutors introduce a new proportionality test. It states that in “very limited situations” the CPS would be free not to prosecute if it was considered a proportionate response to the specific offending”. The change could lead to hundreds of cases a year not being pursued, according to sources.

Desmond Browne QC, the chairman of the Bar Council, questioned whether the additional test was necessary. “A sense of proportion should surely be all part of the decision whether it is in the public interest to prosecute”, he said. “But where there is sufficient evidence and it is in the public interest to prosecute, one needs to be very cautious before deciding that prosecution is not a proportionate response to specific offending. The danger in emphasising proportionality is that it could all too easily become a reason for not implementing the law as laid down by Parliament.”

David Davies, a Tory MP and a member of the home affairs select committee, said “the new guidelines amounted to a ‘criminals charter’. This is another blow for those who believe that criminals should be punished”, he said.

Sources at the CPS said that the new test was intended to apply to cases such as an offender who had previously been given a conditional discharge, stealing a small item from a shop. At present, that sort of minor breach could lead to a jury trial costing tens of thousands of pounds.

Dan Hyde, a criminal lawyer at Cubism Law, said the introduction of the proportionality clause presented an opportunity to avoid wasting resources on spurious trials.

“One would hope it might avoid prosecutions which are patently unwarranted and which undermine public confidence in the police and CPS,” he said.

“They are trying to add a bit of common sense to the decision making process. There is a ‘touchy-feely’ attitude to the whole thing. If applied correctly, it could see a situation where you stand back and take a look at it as a particular course of action. If a lawyer can see there might be public outrage if someone is prosecuted because they have committed a trivial offence, it allows them to say ‘hold on it is disproportionate to prosecute that person’.”

Recent cases that might never have gone to trial under the new system include that of Renate Bowling, the disabled 71 year old who was charged with assault after she prodded a teenager in the chest with her finger when stones were thrown at her home. Another example is that of £20,000 of taxpayers’ money being wasted taking a man to court for taking a banana worth 25p during a drunken night out with friends in Birmingham.

The CPS is now seeking the views of lawyers and the public on the new code, which also contains eight new factors on when it will be in the public interest to bring charges.

These include cases where the offender could use a court appearance to repeat views which will cause distress to another section of the society.