Is our criminal justice system in need of an overhaul?


19 February 2020

Following the tragic death of Caroline Flack on Saturday 15 February 2020 a number of criticisms have been levelled at the Crown Prosecution Service (CPS) for pressing ahead with the case, despite having an unwilling and uncooperative complainant. Those criticisms have led the CPS to take the somewhat unusual step of clarifying how it makes charging decisions.

In December 2019 the 40-year-old host of reality TV show Love Island was charged with assault after allegedly attacking her boyfriend at her home address; she had pleaded not guilty and was due to stand trial next month. She was given bail conditions not to contact her boyfriend; this was despite the fact that he had made it clear he did not support the prosecution and wanted to continue with the relationship. In the hours before her death it is understood that Caroline Flack was informed that despite the complainant's lack of support for the prosecution, the case against her would continue. It is this decision, along with the way Ms Flack was treated by the media, which has prompted widespread criticism.

The CPS have since said that is has to review every case referred to it by the police and that it applies the same two-stage test to every charging decision they make; namely does the evidence provide a realistic prospect of conviction and is it in the public interest to prosecute?

In cases of alleged domestic abuse further guidance is issued to prosecutors as to how to proceed; part of this guidance is that cases cannot be dropped simply because a complainant does not want their partner to be prosecuted. This means that, where appropriate, cases will continue without the consent of the alleged victim. This is to ensure that the system does not reward those who have successfully coerced their victims to withdraw their complaint.

Important consideration should also be given to defendants with mental health issues. It is reported that Caroline Flack told police officers in the aftermath of the alleged assault that she would take her own life. What considerations were in play in her case is not clear but what is apparent is that there appears to be little consideration in our criminal justice system for the impact of proceedings on a defendant’s welfare.

At every stage of the process, from arrest to trial, there is often far too long a delay experienced by those accused of committing an offence. The Police and Criminal Evidence Act (PACE) states that police have 24 hours (in some cases this is extended to 36 hours) in which to hold a suspect in custody before a charging decision is reached. Often that suspect will be released 'pending investigation’ while the police pursue further lines of investigation; it is not uncommon for someone to be released pending investigation for months, if not years, especially in the more complex cases. Even once a charging decision is reached it can then take an increasingly long time for the matter to come to trial. This can cause a phenomenal amount of worry to suspects who feel they cannot get on with their normal life while their future hangs in the balance.

Once a decision to charge someone is reached does the presumption of ‘innocent until proven guilty’ really prevail? Or is it more often the case that society assumes their guilt or moral fault? Cases involving public figures, as was the case with Caroline Flack, attract significant media attention and a number of governments have considered anonymity for defendants charged with certain offences. It is often the case that acquittals tend not to receive the same media attention as the details of the allegations and trial.

At a time when the police and CPS continue to be over worked and under resourced and legal aid cuts and court closures continue, it is clear that the criminal justice system faces an avalanche of problems. It is more important than ever that should you, or someone you know, find themselves, accused of criminal wrongdoing or facing a prosecution, that they have the right representation in place from the outset.

In the event that you require further information on the above article, please contact Julie Gowland or a member of the Regulatory and Corporate Defence Team who will be happy to assist you.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at February 2020.