Challenging a charging decision
It may seem axiomatic that if a person is prosecuted for a criminal offence, the case will be heard in court. That is invariably the case but it is not inevitable.
Sonn Macmillan Walker has considerable expertise in making effective representations to the CPS and other prosecuting bodies leading to the prosecutor reconsidering its decision to prosecute. In some instances, the CPS will agree to an out of court disposal; in others, to discontinue proceedings in their entirety.
All cases are different but two recent successes will illustrate the benefits of instructing tenacious solicitors at an early stage. But first, it is worth recalling that the CPS charging guidance is complemented by a Code that ask prosecutors: is there enough evidence against the defendant (‘evidential’ stage); and is it in the public interest for the CPS to bring the case to court (‘public interest’ stage).
The CPS must be satisfied that there is enough evidence to provide a realistic prospect of conviction against each suspect on each charge. This means considering the totality of the evidence, its reliability and credibility, including the impact of any likely defence or information put forward by the suspect.
If the decision-maker’s assessment is that the court would be more likely than not to convict the person of the charge, the evidential stage is passed, and he/she must then consider the public interest stage. If the evidential stage is not passed, the prosecution cannot proceed no matter how serious or sensitive it may be.
The CPS must weigh factors for and against prosecution fairly before arriving at an overall assessment of whether the proceedings against the suspect is in the public interest. Each case is unique and must be considered on its own facts.
Such public interest factors to be considered would be;
- The seriousness of the offence;
- The suspect’s level of culpability;
- The circumstances of and harm caused to the victim;
- The age and maturity of the suspect;
- The impact on the community;
- Whether prosecution is a proportionate response, e.g. is a nominal penalty likely?
Case study A
Client A got drunk at his Christmas party in 2019 and punched two security guards at the venue in Central London. The victims did not sustain any significant injuries and A was a professional of previous good character. He had a solicitor (from a different firm) during his interview and gave a limited account due to a poor recollection because of the amount of alcohol he had consumed. He was not shown CCTV footage and thought it more likely he pushed the security guards in his drunken efforts to return into the venue. Police decided it would be inappropriate to administer a caution and A was charged with two offences of common assault by beating.
A then approached Sonn Macmillan Walker as he was concerned about the implications of convictions on his employment and international travel. We considered that A would be suitable for a conditional caution based on our analysis of the relevant CPS guidance and given that A accepted he had punched both victims, when told that that was what they alleged. We made detailed written submissions to the CPS setting out our client’s position, which included an offer to pay compensation to the two victims and apologise in person.
The CPS responded by misapplying their own guidance. The fact that A had not fully admitted the offence when questioned in interview did not bar the subsequent administration of a caution which we argued was the overwhelmingly appropriate disposal of this matter. We threatened the CPS with Judicial Review proceedings to challenge the decision to continue the prosecution. The CPS responded to our letter before claim by conceding that a conditional caution was after all appropriate. Whilst our client had clearly behaved improperly, this out of court disposal was devised for this type of low-level offending and is what the principles of restorative justice is all about.
Case study B
Client B was 18 when he received an indecent image of a child via WhatsApp that he instantly forwarded to three friends via Facebook Messenger. His Facebook account was briefly blocked and his friends did not in fact receive the image. Six months later, when he was 19, police executed a warrant at his address and seized all his electronic devices. During his voluntary police interview, he made full and frank admissions and expressed remorse for his actions. In 2019, when he was 20, the CPS commenced proceedings against B for the offence of distributing of an indecent image of a child.
B then approached Sonn Macmillan Walker and we made extensive written representations to the CPS challenging their application of the Code. The CPS refused to alter their decision. As we considered the decision to prosecute, in these exceptional circumstances, so unreasonable as to be unlawful, we filed a Judicial Review claim having first completed the pre-action protocol. Lawyers on behalf of the Director of Public Prosecutions requested a stay to the High Court proceedings so that a fresh review could take place. We presented a clinical psychologist’s report and evidence of our client’s voluntary engagement with the Lucy Faithfull Foundation.
As a result of our efforts, having conducted the fresh review, the criminal proceedings were discontinued in their entirety (without even a caution being administered) meaning our client preserves his good name and does not appear on the sex offender’s register.
The courts have made clear the very high bar that must be overcome by claimants seeking to challenge the lawfulness of decisions taken by investigators or prosecutors. Nevertheless, the case of A and B demonstrate the need for skilled, experienced defence solicitors to be alive to flaws in the CPS’s decision-making processes.
- A was represented by Chris Stevens and barrister Juliet Wells of Temple Gardens Chambers.
- B was represented by David Bloom and barristers Adrian Darbishire QC and Rachna Gokani of QEB Hollis Whiteman Chambers.
Co-written by Chris Stevens and David Bloom.
 The Charging (The Director’s Guidance) (May 2013)
 The Code for Crown Prosecutors (October 2018)
 Conditional Cautioning: Adults – DPP Guidance (November 2019)
 R (Soma Oil) v SFO  EWHC 2471 (Admin) at )