Defence tactics and a happy ending

April 24, 2020

By Ian Harris

1. A useful tool in any defence advocate’s armoury is the Code for Crown Prosecutors. It sets out the steps to be taken before a charge is laid. By paragraph 4 –

4.1 The Full Code Test has two stages: (i) the evidential stage; followed by (ii) the public interest stage.

4.2 In most cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed. However, there will be cases where it is clear, prior to the collection and consideration of all the likely evidence, that the public interest does not require a prosecution. In these instances, prosecutors may decide that the case should not proceed further.

4.3 Prosecutors should only take such a decision when they are satisfied that the broad extent of the criminality has been determined and that they are able to make a fully informed assessment of the public interest. If prosecutors do not have sufficient information to take such a decision, the investigation should proceed and a decision taken later in accordance with the Full Code Test set out in this section.  

2. Thus, if you have either a weak case or one that ‘feels’ wrong or unfair the Code provides that matters must be kept under continual review and paragraph 10 provides for reconsideration by the CPS.
3. How does this work in practice? I was recently briefed to represent an individual charged with assault whose career and prospects would have been shattered by a conviction and – even if acquitted – seriously harmed by the publicity. The facts were straightforward. A 999 call was made by a female to the police saying she needed help following an argument with her partner. Very soon after this call she telephoned to say it was a row that was over. A car had already been despatched. Police arrived and were told by the female that they weren’t required. Nonetheless, they went into the house and spoke to the male. He said that had been a row over his clothes and he thought he had hurt her hand. The police – and the bodycam footage needed to be viewed to see what wasn’t in their statements – established from the parties that the female had been damaging the male’s suit and he grabbed it from her which injured her hand. The uniformed officers arrested the male, as the police summary said, ‘because he had admitted the assault.’ The female (described in the paperwork as the ‘victim’ – a regrettable kneejerk reaction that still persists) asked a detective who attended not to take any proceedings and said she wouldn’t support a prosecution. So… the police arrested the male and took him away for interview and charge. There were no bail restrictions and the couple resumed cohabitation after his discharge from custody.
4. The charge – in the absence of any medical evidence – was a summary only s. 39 assault. The solicitors wrote to the CPS and pointed out the lack of evidence and defendant’s standing and impeccable character. They were met with a (seemingly) standard reply pointing out that this was domestic violence and that it would proceed. I was instructed. Applying to stay proceedings seemed a good start but the more I read the worse the prosecution seemed to be; it was evidentially wrong, baseless and ill-conceived. It seemed to me that the Code tests simply weren’t met. Accordingly, and on the basis that a spoonful of honey will catch more flies than a gallon of vinegar, I drafted a neutral but detailed submission that pointed out the evidential deficiencies and queried where the public interest lay in continuing the case. I conceded ‘… that dv cases do have an impact on the wider community but that this is not such a case and each incident must be viewed from a fact specific point of view’. Character references were also served with the document. They included one from the defendant’s partner.
5. The result – a week before the trial a letter was received discontinuing the proceedings.
6. A good outcome for a grateful and relieved client. The Code repays careful reading, whatever the charge and is a very useful addition to a defence approach. Of course, it can lead to the CPS making further enquiries and/or considering alternative charges and really needs to be kept for obvious cases where there is no risk of any rebound.

Ian Harris is a highly experienced criminal practitioner used to handling heavy and complex cases across the entire criminal spectrum, often leading second juniors in both prosecution and defence trials.