The Crown Prosecution Service has this week launched a 12 week public consultation on important changes to the Code for Crown Prosecutors, which is the document that sets out the principles which prosecutors must follow when they decide whether or not to prosecute an individual. The test set out in the Code is applied in every case and it requires prosecutors to consider whether there is sufficient evidence to charge an individual with a criminal offence and whether a prosecution is needed in the public interest.

In announcing the consultation, Keir Starmer QC, Director of Public Prosecutions, said “Following the announcement of the merger between the CPS and the Revenue and Customs Prosecutions Office (RCPO) earlier this year, I have considered further what changes to the Code for Crown Prosecutors should be made in order to ensure that all prosecutors in the new public prosecution service, along with police officers, are making fair and consistent decisions”. The main changes are:

• Prosecutors will have a discretion to determine whether, where there is sufficient evidence and it is in the public interest to prosecute, a prosecution is a proportionate response to the specific offending.
• Prosecutors will have a discretion to stop a prosecution in the public interest, in exceptional circumstances, before all of the evidence is available.
• A fuller section explaining the Threshold Test.
• A fuller section explaining the use of out-of-court disposals for both adults and youths.
• A fuller explanation of how the public interest is assessed.
• Further public interest factors are identified both tending in favour and against prosecution.

According to ‘The Times’, the consultation will fuel the debate on the numbers of cases escaping prosecution in the courts, which they estimate to be half the 1.4 million offenders dealt with by the justice system each year. A Crown Prosecution Service spokesman is reported as accepting that some offenders could be let off under the guidelines. ‘The Times’ also reports that the proposals were immediately condemned by the Magistrates’ Association, which said that it was yet another instance of the blurring of the respective duties of courts and prosecutors. John Howson, deputy chairman of the Magistrates’ Association, is reported as saying that the new discretion for prosecutors seemed to be “part of the complete muddle in the way we treat offenders and over the boundaries between where the prosecutors and the courts lie”, adding that “if someone has offended, they should be brought before the courts, where we have a range of penalties from an absolute discharge to custody. The job of prosecutors is to find the evidence, not to assess the weight of it”.

The consultation period ends on 11 January 2010 and a summary of the responses received will be published. The full text of the consultation can be found at:-

http://www.cps.gov.uk/consultations/rccp2_consultation.pdf

Debbie Purdy’s persistent pursuit of clarity has borne fruit. She wanted to know from the Crown Prosecution Service whether her husband would face prosecution should he help her to take her life in Switzerland. In a unanimous decision, the law lords ruled that she was entitled to such clarity, and instructed the DPP to clarify his position as to the factors that he regards as relevant for and against prosecution in this very special and carefully defined class of case.

The DPP, Keir Starmer QC, has this week produced his interim guidelines. At their launch he said “There are no guarantees against prosecution and it is my job to ensure that the most vulnerable people are protected while at the same time giving enough information to those people, like Ms Purdy, who want to be able to make informed decisions about what actions they may choose to take.” He went on to detail those factors in favour and against prosecution.

The public interest factors in favour of prosecution include: that the victim was under 18 years of age; or was adversely affected by a recognised mental illness or learning difficulty; did not have a clear, settled and informed wish to commit suicide or did not indicate unequivocally to the suspect that he or she wished to commit suicide; or did not have a terminal illness, or a severe and incurable physical disability, or a severe degenerative physical condition from which there was no possibility of recovery. As to the ‘suspect’, factors in favour of prosecution would be if the victim did not ask personally, on his or her own initiative, for the assistance of the suspect; the suspect was not wholly motivated by compassion or stood to gain in some way from the death of the victim; or persuaded, pressured or maliciously encouraged the victim to commit suicide, or exercised improper influence in the victim’s decision to do so.

The public interest factors against a prosecution include: that the victim had a clear, settled and informed wish to commit suicide, had indicated unequivocally to the suspect that he or she wished to commit suicide, had asked personally on his or her own initiative for the assistance of the suspect, and had a terminal illness or a severe and incurable physical disability or a severe degenerative physical condition from which there was no possibility of recovery. As to the ‘suspect’, factors against prosecution would be if the suspect was wholly motivated by compassion; was the spouse, partner or a close relative or a close personal friend of the victim, within the context of a long-term and supportive relationship; and the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor assistance or influence, or the assistance which the suspect provided was as a consequence of their usual lawful employment.

Response to the guidelines has been mixed. According to ‘The Times’, Lord Falconer of Thoroton, a former Lord Chancellor and the first Justice Secretary, hailed the DPP’s guidelines as a “very, very significant step” and said he had “unquestionably changed the law”. Dignity in Dying, the assisted suicide campaign group, described the move as a “significant breakthrough for greater patient choice”. But Phyllis Bowman, executive officer of Right To Life, called the guidelines a “scandal”. “However much he has tried to cloak it, his guidelines outline an interim policy which in effect will make it legal to assist in a suicide,” she is reported as saying.

Keir Starmer said “I recognise how sensitive this area of law is and I respect the fact that there are many people who hold strong views on assisted suicide. I want to hear those views and that is why I have also launched a public consultation today. By considering as many views as possible, I can produce a final policy which is faithful to both the law and public feeling.” The public consultation will be open until 16 December, after which a summary of the consultation responses will be published. The finalised policy will be issued in Spring 2010.

The full text of the Interim Policy can be found at: http://www.cps.gov.uk/consultations/as_consultation.doc, and details of the consultation can be found at: http://www.cps.gov.uk/consultations/as_index.html

A ‘two strikes and you’re out’ policy, in which excessive speedsters caught twice would lose their licence, is among proposals being considered by the government for strengthening road safety. A detailed analysis of traffic casualties shows that “extreme speeders” are more likely to be involved in an accident and the consequences will be more severe when they are. The evidence also shows that the same drivers speed excessively across all speed limits and the proposal is to introduce a graduated fixed penalty of 6 penalty points for drivers who exceed the speed limit by a very large margin – 20 mph in most speed limits. Get caught twice and you lose your licence.

There were 2946 road users killed in 2007, and nearly 28,000 more seriously injured. Publishing a consultation process designed to reduce this annual toll, Jim Fitzpatrick, the transport minister responsible for road safety, said that it “seeks views on proposals for measures aimed at improving compliance levels with key road safety laws. Transgressions of these laws are the cause of many hundreds of deaths.” The consultation sets out a package of measures aimed at “helping the responsible majority of road users and cracking down on the reckless few.” Apart from speeding, the very detailed package tackles drink driving, the wearing of seat belts, drug driving and careless driving.

In October the minister disappointed safety experts when he stated that the government had decided against reducing the legal limit for alcohol in a driver’s blood (see ‘Drink and driving’ blog posted on 27.10.08). Instead he proposes to tighten up the enforcement regime by developing targeted checkpoint enforcement. The introduction of digital breath-testing equipment, at a reported cost of £2m, will remove the necessity for a blood or urine test, reducing police time spent dealing with drunk driving. And a reduction in the legal limit in a driver’s blood is not ruled out at some time in the future.

Drug driving, which is estimated to cause 20% of all road deaths, presents different problems. There is no legislation in place to allow for easy prosecution. The current law requires proof that a driver is impaired by drugs. The procedure is complex and cases are few. The consultation promises to explore whether a new offence needs to be created.

The DoT claim to have achieved a very high overall level of seat belt wearing, but have nevertheless developed a new, hard-hitting THINK! campaign which you have probably seen on TV already. In addition, the Home Office is currently consulting on an increase in the penalty for failing to wear a seat belt from £30 to £60 in 2009. Also proposed is a fixed penalty offence for careless driving, which will enable the police to enforce with a minimum of bureaucracy against careless drivers who admit their fault. The fixed penalty would be £60 and 3 penalty points.

If you want to contribute to the consultation process you have until 27 February 2009.

See: http://www.dft.gov.uk/consultations/open/compliance/roadsafetyconsultation.pdf