Absurd injustice

[tenpenceshort]

Breadvan72 said:

If the victim always had to "press charges", then no murder could be prosecuted. The police decide whether to charge, and the CPS decide whether to prosecute. In some rare cases, the Attorney General has to make the decision. Of course, in practice these decisions may be heavily dependent on the willingness of the victim of the offence to provide evidence.

The police are allowed to charge some crimes, though in many cases this decision is down to the CPS.

[anonymous-user]

You are Zeeky AICMFP.

[tenpenceshort]

Breadvan72 said:

You are Zeeky AICMFP.

Yoinks!

Assuming there are any left in here, I would imagine the Police officers of the forum would tell you of the frustration when files are sent to CPS for a charging decision and it's sent back NFA.

However, the Police can make charging decisions all by themselves in some instances.

To people looking in the lines are quite blurred between investigating and prosecuting authority. To those within I get the impression there's frustration at the disconnect between them. The worst of both worlds!

[SamHH]

What determines whether a charging decision is made by the police or CPS and what is the rationale?

[tenpenceshort]

SamHH said:

What determines whether a charging decision is made by the police or CPS and what is the rationale?

With some exceptions the Police can make the charging decision in cases that can be heard entirely in the magistrates court.

See here for the CPS guidance;

http://www.cps.gov.uk/publications/directors_guida...

[Zeeky]

Which are far more likely to be applicable to readers of this forum. Hence the need to understand your audience when giving advice.

[photosnob]

tenpenceshort said:

With some exceptions the Police can make the charging decision in cases that can be heard entirely in the magistrates court.

See here for the CPS guidance;

http://www.cps.gov.uk/publications/directors_guida...

Or when the police run out of time and want to remand you.

Yes it did happen to me. Was given bail the next day at the magistrates and the crown never offered any evidence.

[anonymous-user]

SamHH said:

What determines whether a charging decision is made by the police or CPS and what is the rationale?

The rationale, in simple terms (without going into the threshold test etc), is:

1) Is there a realistic prospect of conviction? 2) Is it in the public interest?

Even if the police charge on relatively minor matters the CPS can and do discontinue prosecutions they feel don't meet the above.

Moe details on the full test code is here.

[tenpenceshort]

Zeeky said:

Which are far more likely to be applicable to readers of this forum. Hence the need to understand your audience when giving advice.

As has been pointed out above, the Police decision, where it's theirs to take, can be reversed by the CPS at any point if the code test is not met (including private prosecutions taken over by the CPS).

As for the audience here, it's a thread about PCoJ / Rape, neither of which would be Police charging decisions.

[photosnob]

tenpenceshort said:

As has been pointed out above, the Police decision, where it's theirs to take, can be reversed by the CPS at any point if the code test is not met (including private prosecutions taken over by the CPS).

As for the audience here, it's a thread about PCoJ / Rape, neither of which would be Police charging decisions.

I know I'm being pedantic. But the police could charge either of those crimes in certain circumstances. The chances of them doing so are reasonably high with both of those offences if they felt someone could be dangerous and ran out of time on a custody clock. It's hardly a big deal either way, as soon as you get to court it's out of the polices hands.

[tenpenceshort]

photosnob said:

I know I'm being pedantic. But the police could charge either of those crimes in certain circumstances. The chances of them doing so are reasonably high with both of those offences if they felt someone could be dangerous and ran out of time on a custody clock. It's hardly a big deal either way, as soon as you get to court it's out of the polices hands.

The Police are supposed to charge in good time so they will not run short of it and be faced with charge or release. My understanding from the guidelines is that an Inspector can make a charging decision in cases where the time limit will run out and a decision must be made before the CPS can respond, though this decision must be reviewed by the CPS prior to any court hearing. The effect of this is that someone should not face a court hearing for a contested either way or indictment only offence without the CPS having made the charging decision. Knowing how the CPS are underesourced, it would not surprise me if these decisions were being made on the morning of the first hearing, though.

[SamHH]

tenpenceshort said:

With some exceptions the Police can make the charging decision in cases that can be heard entirely in the magistrates court.

See here for the CPS guidance;

http://www.cps.gov.uk/publications/directors_guida...

Thanks.

La Liga said:

he rationale, in simple terms (without going into the threshold test etc), is:

1) Is there a realistic prospect of conviction? 2) Is it in the public interest?

Even if the police charge on relatively minor matters the CPS can and do discontinue prosecutions they feel don't meet the above.

Moe details on the full test code is here.

Sorry, I should have elaborated. I meant what is the rationale for some charging decisions being allocated to the police and others to the CPS. Going by the information above, I guess the rationale is that decisions about relatively trivial matters are allocated to the police in order to save resources: only one organisation need decide that the case meets the Full Code Test instead of two. Is that accurate?

How common are cases where the police decide to charge and the CPS subsequently decide to discontinue the prosection?

[anonymous-user]

It's essentially less serious matters, yes.

Keep in mind the majority are going to be guilty pleas, so it was an absolute waste of time going to the CPS in the past when the accused was going to plead guilty when first appearing. The criteria is more strict when a the offence is denied a 'not guilty plea' is anticipated.

When there's a 'not guilty' plea the prosecutor will have a look at the file to ensure there's sufficient evidence for a prosecution. I'm not sure if this is a formal process per se, but they literally won't even look at a Magistrates' court file to the day of the first appearance. There are so few of them doing it.

I'm not sure about data for police charging / CPS discontinuance.

[Zeeky]

tenpenceshort said:

Zeeky said:

Which are far more likely to be applicable to readers of this forum. Hence the need to understand your audience when giving advice.

As has been pointed out above, the Police decision, where it's theirs to take, can be reversed by the CPS at any point if the code test is not met (including private prosecutions taken over by the CPS).

As for the audience here, it's a thread about PCoJ / Rape, neither of which would be Police charging decisions.

That's what I mean about knowing your audience. People don't stick to the subject in hand and like to know general rules rather than putting comments into context. That is why your addition is helpful. Evidence of that can be found in the follow up question to it.

[SamHH]

La Liga said:

It's essentially less serious matters, yes.

Keep in mind the majority are going to be guilty pleas, so it was an absolute waste of time going to the CPS in the past when the accused was going to plead guilty when first appearing. The criteria is more strict when a the offence is denied a 'not guilty plea' is anticipated.

When there's a 'not guilty' plea the prosecutor will have a look at the file to ensure there's sufficient evidence for a prosecution. I'm not sure if this is a formal process per se, but they literally won't even look at a Magistrates' court file to the day of the first appearance. There are so few of them doing it.

I'm not sure about data for police charging / CPS discontinuance.

Thanks

[Moonhawk]

Surely - if you take a deliberate criminal action that causes a trial to be stopped - the punishment for that action should be at least on par with the crime for which you were being tried (kinda like failing to give a specimen of breath holds the same punishment as being caught over the DD limit).

If not - it leaves the legal system open to being sabotaged.

[anonymous-user]

I incline to agree (emphasising the "at least", as otherwise Chris Huhne would only have received a sixty quid fine and three points on his driving licence, as turbobloke points out above), but the sentencing guidance says otherwise. As Zeeky correctly points out, the sentence here was within the guidelines, but I think that it was arguably on the low side and the Judge could have gone higher without risk of a successful appeal. There may of course have been factors present that we do not know about from the media reports of the case.

[tenpenceshort]

Moonhawk said:

Surely - if you take a deliberate criminal action that causes a trial to be stopped - the punishment for that action should be at least on par with the crime for which you were being tried (kinda like failing to give a specimen of breath holds the same punishment as being caught over the DD limit).

If not - it leaves the legal system open to being sabotaged.

If the trial can be re-run, the solution is to punish the offender for the PcOJ and then let the originating trial run its course.

In this case a witness essential to the prosecution decided to pull out, meaning they discontinued the original prosecution. Ironically (and not necessarily literally), that isn't the defendant's fault.

My opinion is that it would be a very dangerous thing indeed, to punish the defendant to the level he would otherwise have been following a guilty verdict at trial. I think that would be assuming too far that the motive for the PCoJ was due to him being guilty. The offence of PCoJ has sufficient range, zero to life imprisonment, that it is perfectly capable of being sentenced independently and not tied to the originating offence (bearing in mind that with some cases of PCoJ there might not be an originating offence).

[Martin4x4]

La Liga said:

Martin4x4 said:

The whole thing is a farce, but specifically why abandoned the trial in the first place

We've not seen the letter or the details details or why it was abandoned. If you were being tried and a significant new piece of evidence emerged in which you and your defence counsel had not seen, you'd want the same.

Martin4x4 said:

it just opens the flood gates to flood gates to defendends sending fake letters and get off with a light sentence.

I'm not sure how keen people will be to obtain 3 x PCOJ convictions and ride their luck that the complainant doesn't want to go to trail with the original offence, somehow.

You realise what he's been sentenced for has nothing to do with the rape allegation, right? And that it wasn't in replacement of it?

He could have found himself with these convictions and subsequent custodial sentence, and a rape conviction and further time in prison had the complainant followed through with her complaint for the second trial.

I do agree the 18 months strikes me as a little too short (not necessarily from a sentencing guideline point of view, but from a moral one).

paranoid airbag said:

TooMany2cvs said:

Red Devil said:

Unfortunately the victim has chosen to withdraw her complaint.

THIS is the important bit.

The CPS can't prosecute without the alleged victim on the stand to say "Yes, he raped me". Innocent until PROVEN guilty, and beyond reasonable doubt, remember?

Entirely true.

Not entirely. If the evidence were there they could prosecute in the absence of a complainant. This occurs in domestic matters on some occasions.

paranoid airbag said:

Nevertheless it illustrates a fairly absurd failing in law, a reverse trial by ordeal. What's the point in such an elaborate legal system that can't deal with this sort of thing?

How do you mean?

The reports say he produced the letter at the trial, so it was not 'unseen' and it seems was proven to be false in the same trial. He's prejudiced himself so I cannot consider it just to still gain a benefit from perverting the justice system. I don't think an innocent person would do this. Which is why I think it is absurd to abandon the trial and drop the charges.

Even so, I understand the victims evidence can still be used against him at another trial even without her testimony. She will already have been cross examined and I think a jury (preferable original but now not possible) should still have been given all the facts to make a verdict on the original charges and the PCOJ sentence added not replace the original sentence.

The 18 months is significantly less than a rapist should expect.

I still think this opens the flood gates for all sorts of abuses to further weaken justice.

Hopefully one of lawyers can enlighten us when the trial report is filed in the system.

--- edits for grammar and clarity ---

Edited by Martin4x4 on Monday 25th August 13:28

[anonymous-user]

The transcripts of Crown Court trials are not usually published, as they turn on their own facts and publishing reports of every one of them would cost too much.

In this case it is probable that the trial could not proceed because the jury had become aware that the defendant had produced a false exculpatory letter. This prejudiced a fair trial on the rape charge itself.

We cannot simply assume that the defendant was guilty of rape. He may well have been, but sometimes dumb people have a real defence but try to improve on it.