Coming two weeks after the release of the Interim CPS Charging Protocol (see here and here for more details) the CPS has issued interim guidance on the application of the Code for Crown Prosecutors, to clarify prosecutors' review responsibilities under the Code for use during the COVID-19 pandemic.
The guidance is clear that the pandemic presents "an unprecedented challenge for the Criminal Justice System, particularly on case progression" meaning that one of the long-term impacts will be "the expanding pipeline of cases waiting to be heard."
Against that background, prosecutors are asked to approach the question, "is prosecution a proportionate response" with the impact on the criminal justice system of the pandemic in mind, including:
- the expanding pipeline of cases;
- the fact that criminal proceedings and case progression are likely to be delayed and any significant delay may adversely impact victims, witnesses and defendants (and in some cases reduce the likelihood of a conviction);
- that each case introduced into the system will add to the expanding pipeline (and, for serious fraud, in the words of the words of the Interim Charging Protocol, will be "likely to clog up the court system if charged and actioned at this stage.")
The guidance says that the pandemic should be considered a "change in circumstances" under paragraph 3.6 of the Code for Crown Prosecutors, which requires prosecutors to review each case, on an ongoing basis, taking into account any change in circumstances. The guidance says that "in the majority of cases, there will be no impact at all, and the public interest will lie with continuing the prosecution" but suggests there may be circumstances where a different charging decision is appropriate - from discontinuing proceedings altogether to accepting guilty pleas to some but not all charges or to a less serious offence.
"When reviewing a case and considering [the question whether prosecution is a proportionate response], prosecutors should do so in the context of the ongoing impact on the criminal justice system of the Covid-19 pandemic..."