The Charging Of Suspects Criminal Justice Act 2003
Rene Barclay, of the CPS explains the new role of the CPS in the charge room.
Rene Barclay, of the CPS explains the new role of the CPS in the charge room.
Part 4 of the Criminal Justice Act 2003 introduces a new method of charging suspects, which replaces the current system of charging. The new provisions represent a fundamental change to the allocation of charging responsibilities between CPS and police.
Under existing arrangements the police retain the responsibility for deciding whether a person should be charged with a criminal offence and may seek advice from the CPS beforehand but are not required to do so.
These existing arrangements and responsibilities, which have placed the prosecutor, prior to charge, in an advisory role, are swept away by the Act, which makes the prosecutor responsible for the charging decision in nearly all cases.
In a nutshell the Act places on prosecutors the responsibility for determining the charge to be brought against a suspect in all but the most routine cases (such as minor Road Traffic Act prosecutions and, for the time being, some cases suitable for disposal as a guilty plea in the magistrates court).
In most cases, and for sound practical reasons, that responsibility will be discharged by prosecutors at the police station or through the out of office hours CPS Direct telephone facility.
The Mechanism
The act achieves the change through section 28, which gives effect to schedule 2.
Schedule 2 substitutes/amends key provisions in PACE [particularly section 37 (7)] and under new section 37A PACE the Director has issued Guidance for the purpose of :
enabling custody officers (CO) to decide how to apply section 37 (7) PACE and
determining what documents must be sent to prosecutors to make a charging decision.
Overview of the legal changes
The Detention path
Following a suspects arrest the custody officer will authorise his detention to determine if there is sufficient evidence to charge [section 37 (1) PACE].
If the custody officer decides there is not sufficient evidence the suspect must be released [section 37 (2) PACE], unless the custody officer reasonably believes the suspects continued detention is necessary to secure/preserve evidence relating to the offence, or to obtain such evidence by questioning the suspect at interview [Section 27 (3) PACE].
If the custody officer decides there is sufficient evidence then new section 37 (7) PACE will apply and provides the custody officer with 4 options. These are as follows:
Option 1 – Release the suspect without charge and on bail (which may be conditional) to enable the prosecutor to make a charging decision where the evidential material for such decision is not available [new section 37 (7) (a)]. This option is very much wider than the present “advice” file procedure and is designed to ensure the charge, if one is brought, is right first time. There is no statutory time limit in relation to the length of the bail period.
Option 2 – Release the suspect without charge and on Bail [new section 37 (7) (b)] but not for the above purpose. This option will be appropriate where police wish to undertake further enquiries and consider it premature at that stage to seek a charging decision from the prosecutor. Bail under this option may only be unconditional.
Option 3 – Release the suspect without charge and without bail [new section 37 (7) (c)] This releases the suspect from any obligation to return to the station and effectively brings the investigation to an end. The decision not to charge will be one taken by the prosecutor in all cases except those falling within the limited range of cases in which the police are permitted, under the guidance, to determine the charge.
Option 4 – Charge the suspect [new section 37 (7) (d)] The decision to charge will be taken by the prosecutor in all cases except those falling within the limited range of cases in which the police are permitted, under the Guidance, to determine the charge, or in emergency cases involving the expiry of PACE time limits (see below) as explained in the Guidance.
It is for the custod