Weighing up cost of court on scales of justice

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The main role of the Crown Prosecution Service is to make sure the right people are prosecuted for the right offences and to bring offenders to justice wherever possible.

To assist them, and to ensure the law is applied consistently throughout the country, the Director of Public Prosecutions issues a code, which provides guidance to the CPS.

In January DPP, Keir Starmer QC, published a new code for prosecutors, which includes a section which directs prosecutors to ‘consider whether a prosecution is proportionate to the likely outcome’. In any prosecution they must now consider the cost of a prosecution to the CPS and wider criminal justice system. Where the potential cost may be regarded as excessive, weighed against any likely penalty, they can decide not prosecute in the public interest. Another cost-cutting directive advises them to consider ‘effective case management’ in cases involving multiple suspects. Put simply this means if there is a complicated job involving many accused, they need only charge the main offenders in order to avoid lengthy and costly trials. In these austere times, this guidance may appear prudent. For example, is it worth prosecuting someone at the Crown Court for a minor theft, which would expensively tie up a judge, barristers, witnesses and a court?

Unfortunately, this means some victims may not have their day in court because of cost. That creates a further imbalance in the justice system because when you compare it to the rights of a suspect, they are entitled to free legal advice, no matter the cost, even when they are persistent criminals. The new directives in the prosecutors’ code will need careful management, as some devious individuals may try to exploit it.

Firstly, there may be scope for people who can afford to hire the most expensive legal minds to deploy legal tactics, which would mean the cost of a prosecution becomes excessive in relation to the potential outcome.

Secondly, in cases involving multiple offenders, it can be the case that the key individuals in criminal acts ensure they take minor roles in the actual commission of the offence. They arrange for others to ‘get their hands dirty’ and minimise their own role. There is a risk some people who are suspected of involvement in organising wider criminal activity could avoid prosecution. This means their criminal records will not accurately reflect their conduct, should they be prosecuted for other offences in the future. Overall, the new prosecutors code provides sensible and considered guidance. However, be aware justice is viewed as having a price tag and may not always be paid.

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