The Coronavirus: Interim CPS Case Review Guidance – The Pandemic and the Public Interest Test

The Criminal Justice System is being forced to adapt to the environment created by the Covid-19 lockdown. On 14/04/2020 the CPS issued new Guidance to assist Crown Prosecutors in deciding whether it is – or continues to be – in the public interest to pursue cases in light of the pandemic. William Staunton and Tony Williams examine the implications of this new Guidance and the potential impact on ongoing cases.

The new Guidance is set out in the Coronavirus: Interim CPS Case Review Guidance – Application of the Public Interest Covid-19 crisis response (‘the Interim Guidance’). This makes it clear that Crown Prosecutors when reviewing cases and charging decisions should consider the impact of the Covid-19 pandemic on the Criminal Justice System and case progression.

The CPS have always been under a continuing duty to review cases (Code for Crown Prosecutors, para 3.6), particularly where there is a change of circumstances affecting the case. The Interim Guidance is not intended to be an amendment of the Code for Crown Prosecutors. 

However, when applying the Full Code Test and considering whether prosecution is a proportionate response, Crown Prosecutors should now bear in mind that every case introduced or kept in the system creates an increased burden on the already struggling Criminal Justice System. The Interim Guidance also clarifies that the pandemic should be considered a “change in circumstances” when considering whether it is in the public interest to continue with a prosecution.

One should always appreciate a good legal understatement but clearly this is a necessary clarification. 

For all those involved in the Criminal Justice System, it is reassuring to know that the CPS is doing what it can to balance the danger that Covid-19 poses to court staff, jurors, witnesses, Defendants and lawyers in determining  the interests of justice. Crown Prosecutors are now obliged to review each case on its merits and consider the following factors in light of the pandemic:

  1. The possibility of an out of court disposal;
  2. The acceptability of pleas;
  3. The time spent in custody and any likely periods on remand for defendants; and
  4. The age and maturity of defendants.

In view of the aforementioned “change in circumstances” it has been our job at Central Chambers to review all cases in which we are instructed with this new guidance in mind. 

Mr Staunton recently had a discussion conducted on CCDCS with prosecution Counsel suggesting a possible out of court disposal on behalf of a Defendant facing a retrial on serious drugs charges based on the new guidance. This attempt to resolve was referred to by a Judge during a recent video link re-fixing a hearing. Although the Crown unfortunately did not give ground, the application of the Interim Guidance in that case demonstrates that prosecutors and Courts are willing to turn their minds to resolving long-running matters during this crisis.

CPS Guidance on Covid-19

Mr Williams has advised further in two cases where an out of court disposal had been proposed prior to the pandemic, recognising the potential that the Interim Guidance could now lead to a sensible and proportionate resolution on behalf of his clients. In both of those cases the CPS has now confirmed it will offer an out of court disposal rather than continue with the prosecution.The Interim Guidance acknowledges that in the majority of cases it will remain in the public interest to continue with the prosecution. However, it is hoped that the Interim Guidance it will assist in tipping the balance in a number of “borderline” cases. If effective, this has the potential to alleviate the ever-increasing backlog of criminal cases until trials resume. It will also hopefully result in more pragmatic resolutions in some long-running cases, with closure for Defendants and complainants alike.

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