New CPS COVID-19 Guidance – a change in approach to charging?

Whilst there has been a large reduction in the number of motorists on the UK’s roads as a result of COVID-19 and the ensuing lockdown, the CPS has published new guidance which seems likely to affect how charging decisions in respect of less serious offences (likely to include driving offences and particularly those where death or very serious injury does not result) are approached. The guidance clarifies prosecutors' review responsibilities under ‘The Code for Crown Prosecutors’ in the context of the COVID-19 pandemic. The long established two stage ‘Code Test’ remains very much in place, and prosecutors will continue to consider firstly whether there is sufficient evidence to provide a realistic prospect of conviction, and secondly whether it is in the public interest to prosecute. 

It is when considering whether it is in the public interest to prosecute that the guidance suggests a subtle yet potentially significant change of approach, particularly when determining whether ‘a prosecution is a proportionate response’. It has long been argued that prosecution for less serious offences such as careless driving is often disproportionate. This is because such offences by their very nature require only low culpability, and whether a driver is charged depends to a large degree on whether injury resulted. The culpability of a driver is in many cases no more, and no less than a driver involved in a collision where through only good fortune, vehicles were the only casualties. Culpability is also a key consideration in the public interest ‘Code Test’ and determinants include whether the offending was pre-meditated, planned, or whether it is likely to be continued or repeated. In relation to less serious driving offences, the answer is invariably ‘no’. 

If the new guidance is to be properly applied we would expect to see a reduction in the percentage of motorists involved in injury collisions (where the driving is alleged to have been careless) facing prosecution, and it is certainly arguable that there would be little public opposition to such low level offenders avoiding prosecution, as opposed to those accused of dishonesty, assault etc. 

The guidance suggests that prosecutors must give greater consideration to whether an out of court disposal such as a Police Caution might be an appropriate response or a ‘guilty plea to some, but not all, charges, or to a less serious offence’. In light of the guidance it also appears likely that we may see a review of ongoing prosecutions of motorists charged with less serious driving offences, and the CPS may be willing to look on defence submissions to discontinue more favourably. 

It is worth noting that this is only interim guidance and in the longer term we will find out whether the approach will revert back once the crisis is over, particularly when the roads return to normal and the amount of road traffic offences increase. However, given the long court backlog and the mounting pressure that the criminal justice system faces, it is not difficult to imagine that the guidance will remain in place for some time yet.

For further guidance please visit cps.gov.uk or contact Keoghs Associate, Tom Stevenson.