Interim charging and interview protocols: a response to the Covid-19 crisis

The Criminal Justice System has been profoundly disrupted by the Covid-19 outbreak. No new jury or summary trials are being started and any current trials are battling with the attendance of victims, witnesses, defendants, advocates and jurors.

The National Police Chiefs' Council, CPS and other bodies have published interim protocols with regard to charging and conducting interviews in response to the crisis.

Most notably from a white-collar crime perspective, the protocol is putting the charging of complex fraud on the backburner, unless the fraud is Covid-19 related (read more about such cases here). Such frauds fall under 'Other Cases' and thus have lower priority because they require lengthy investigation and consideration of disclosure ahead of a charging decision being made. The authorities are concerned that such cases will clog up the court system if charged and actioned at this stage. Whilst fraud cases can be transferred to the Crown Court, proceedings will inevitably be delayed by the court's backlog. This is unavoidable in the circumstances and it is encouraging that a "virtual specialist fraud court could be set up to manage cases and prepare a longer listing plan".

The police and CPS must now carefully prioritise which cases they progress and how they do so according to whether they fall into three categories of case: (A) Immediate, (B) High Priority or (C) Other Cases.

A. Immediate Cases – Custody and all Covid-19 Related Cases

Immediate Cases are those where either:

(a) the police or other investigators are seeking a charging decision followed by a remand in custody (whether applying the Full Code or the Threshold Test) ; or

(b) if the case is Covid-19 related (irrespective of whether remand in custody is required)

Therefore Covid-19 related cases are by their nature considered Immediate. For any other offence to be considered immediate, it must satisfy the Full Code Test (i.e. prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction and, if so, that the public interest factors in favour of a prosecution outweigh those against) or, if this isn't possible, it must meet all five aspects of the Threshold Test:

1. There are reasonable grounds to suspect that the person to be charged has committed the offence;
2. Further evidence can be obtained within a reasonable period of time to provide a realistic prospect of conviction;
3. The seriousness or the circumstances of the case justifies the making of an immediate charging decision;
4. There are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case it is proper to do so; and
5. It is in the public interest to charge the suspect.

The police will only seek to obtain an immediate charging decision where the withholding of bail is properly justified or the case requires CPS authority to charge and is a Covid-19 related case. The protocol adds that during office hours any case under paragraph 29 of Director’s Guidance 5 (i.e. the most serious, sensitive and complex cases) should be referred to local CPS Areas, where the police can access advice.

Where a decision to charge has been made on an Immediate Case, it should be anticipated that the defendant will be placed before the next available court, for an application to remand them in custody (although this may not apply with all Covid-19 related cases).

It is important for investigators to carefully consider whether the exceptions under the Bail Act 1976 apply. They must rebut the general presumption in favour of bail and satisfy the CPS that there are substantial grounds for believing that the defendant will either:

• fail to surrender to custody;
• commit an offence while on bail; or
• interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

The protocol is keen to stress that the seriousness of the offence, the likely sentence and strength of the evidence are also important considerations, particularly at a time when offences may take some time to progress through the system.

In addition the remand hearing will be conducted by a CPS lawyer working remotely wherever possible, in accordance with the Coronavirus Bill. The protocol provides an indicative, non-exhaustive table of examples of case types likely to require immediate charging decisions, including:

• Homicides
• High risk domestic abuse
• Serious violence (e.g. Section 18)
• Robbery and Aggravated Burglary
• Very serious public disorder (e.g. violent disorder)
• Covid-19 dishonesty offences against vulnerable victims
• Terrorist Act Offences
• Serious Assaults and Covid-19 related on emergency workers
• Serious sexual offences and abuse of children
• Intelligence-led interventions against OCGs (e.g. drugs, people-trafficking, gangs, county lines, those carrying knives risk of homicide)
• Other Covid-19 related offending (eg. Fraud)
• Offending on bail of high priority and other cases

It is worth noting that in cases where the Defendant has been previously charged and bailed, the case may become Immediate where the Defendant commits further serious offences.

B. High Priority Cases – Non-Custody Bail Cases

The protocol described High Priority Cases as "still serious cases which require bail conditions under the Bail Act, primarily to prevent further offending and protect the public. They are not cases which necessarily require the defendant to be remanded in custody, following a charging decision". Examples provided by the protocol include:

• Other types of Domestic Abuse, RASSO, Hate Crime, Serious Violence, Terrorism-related offences, drug supply/cultivation, serious offences of dishonesty with identifiable victims, serious public disorder offences (e.g. affray)
• Less serious assaults on emergency workers - other than Covid-19 related
• Gross negligence manslaughter and misconduct in a public office
• Road traffic fatality cases
• Dangerous driving
• Youth Court cases
• Cases involving vulnerable witnesses (as defined by section 16 Youth Justice and Criminal Evidence Act 1999.

Such cases will be dealt with by the out of custody process. Any making of a charging decision will rank behind those requiring immediate action. Once the charging decision is taken, the police should charge with a long court bail date either:

• 28 days where a guilty plea is anticipated; or
• 56 days for where a not guilty plea is anticipated,

from the date of charge. It's hoped that this will allow the current crisis to pass, but if not then the dates can be moved back or hearings may be conducted remotely.

The protocol emphasises that the long bail date does not prevent preparation for the hearing taking place in the intervening period, for example, agreeing pleas, identifying which cases will require a contested trial, narrowing down trial issues etc. For cases anticipated for the Crown Court, trial counsel may be instructed early.

C. Other Cases – Released Under Investigation or No Arrest Required

Cases that are neither Immediate nor High Priority broadly fall into two categories:

(1) Large, complex investigations which have been investigated for some time (e.g. complex fraud). The protocol encourages preparation on these cases to continue ahead of charge, which will shorten the process post-charge. Complex fraud cases can be transferred directly to the Crown Court (giving notice under s.51B CDA 1998), but warns there is likely to be a significant backlog caused by delays to so many existing trials. The possibility of a 'virtual specialist fraud court' being set up for such cases may alleviate this issue.

(2) Cases of a less serious nature. The protocol acknowledges that summary-only offences have statutory time limits of six months within which proceedings must be commenced. It states that these cases "should be listed, either through postal requisition or summons 84 days after the issue of proceedings". It is hoped that such a measure will allow some cases to be "weeded out" ahead of a trial listing.

Examples of Other Cases include:

• Serious fraud
• Large SOC investigations where suspects RUI
• Benefit fraud
• Common Assault (except DA)
• Criminal Damage (low value)
• Other public order offences eg. s.4 and 5 POA 1986
• Road traffic offences outside of fatalities and dangerous driving
• low-value dishonesty offences

Interviews

The categories above have also been adopted in respect of interviews in a further Covid-19 protocol.

Categories A and B

Interviews for category A and B offences are to be conducted by way of the following options in order of preference:

• Completely virtual interview – all parties dial in to a Custody Laptop with OIC in interview room recording and suspect in VC room.
• Partial virtual interview – OIC and Interviewee in interview room, Legal Rep appears via a video link.
• All parties physically required due to severity – all persons will be issued with the appropriate PPE and given instructions on how to use this.

A charge without interview will only be considered in "exceptional circumstances" when the options above are unavailable. Before this takes place consideration will be given to the interviewing officer providing a list of questions and requesting a written statement under caution from a suspect.

Category C

For these cases, the suspect will be bailed or released under investigation until an interview can be conducted unless (a) the evidence is overwhelming or (b) the statutory six-month time limit would expire before interview. If either (a) or (b) apply then the suspect will be charged.

Conclusion

Whilst there are some blurred lines between each category, it appears that these are appropriate steps to ease the burden on the criminal courts. The 'long court bail date' (LCBD) in high priority cases may, however, prove to be too short to allow the crisis to pass, and therefore there may need to be a further review following updated government advice. The practical impact of the LCBD for those charged with a non-custodial offence is that they will remain on bail for a considerable time (where a not guilty plea is anticipated) and possibly subject to onerous bail conditions before their first appearance.

Similarly in Other Cases, it might be optimistic to anticipate that cases are "weeded out on evidential or PI grounds" after 84 days from the issue of proceedings. This may be predicated on the CPS having adequate resources to re-review these cases before a trial listing.

As has been highlighted greatly by the opponents of the austerity measures of the last 10 years, it is essential for the criminal justice system to be sufficiently resourced so that the wheels of justice keep turning.