Will my criminal trial be affected by COVID-19?

April 16, 2020, By

Rachel Fletcher, our Head of Crime and Regulatory, offers guidance for those who have an upcoming criminal trial on how it will be affected.

With the Criminal Justice System (CJS) at breaking point, the Crown Prosecution Service (CPS) published guidance this week (14 April 2020) to assist in deciding which cases should take priority and which charges should be reviewed in light of the pandemic.

Which Criminal Trials Take Priority?

Priority cases include homicides, serious domestic abuse, cases involving violence and sexual offences.

The majority of criminal cases have stopped with all but the most serious matters being adjourned for 12 weeks in the first instance. Even this time frame seems optimistic.

The unique nature of criminal trials and the close interaction between large numbers of those involved, from witnesses, to lawyers, jurors and court staff mean that social distancing just isn’t a possibility in criminal proceedings. Whilst the government passed urgent legislation, The Coronavirus Act 2020, to extend the use of live links in criminal proceedings, we are still a long way off from fully virtual courts. Plus, juries are excluded from using live links.

There are two factors to test whether a case is worthy of the precious time in court.

  • Firstly, is there enough evidence?
  • If there is sufficient evidence, is a prosecution in the public interest?

To come to a decision, the following must be considered, and scrutinised, in line with the current circumstances we are facing:

  • Severity of the offence
  • Level of culpability of the accused
  • Circumstances of harm to victims
  • Age & maturity: consider with past records and impact on future prospects
  • Impact on community: the higher the risk, the higher the priority
  • Is prosecution proportionate to the crime: severity, public interest & harm caused
  • Do sources of information need protecting, especially if public interest is at risk

Impact on Less Serious Cases

New guidance suggests that for less serious offences, all options should be explored by the CPS, so as not to clog the criminal justice system any more than it already is.

With each new or adjourned case, the backlog grows daily, putting a further burden on courts.

With this in mind, the new guidance asks the prosecution to consider whether there is an alternate appropriate disposal. This could mean accepting a guilty plea to some charges. For a less serious offence, it would enable the court to pass a sentence that reflected the gravity of the offence and save the need for a trial.

Prosecutors are encouraged, where appropriate, to engage with defence and prioritise the serious cases which can only be right.

A Case Study from Our Crime Team

Our Head of Crime, Rachel Fletcher, recently represented an individual charged with common assault. We did not believe that the case satisfied the public interest test and oral representations were made at court at 2 separate hearings. Each time the CPS agent insisted the case should proceed.

Rachel then made lengthy written representations to the CPS outlining the reasons why they had failed to apply the Full Code Test, submitting that the prosecution was not in the public interest as the circumstances in which it arose were exceptional. The CPS recently withdrew the charge.

We frequently see cases where either the incorrect charge has been laid, the evidence is weak or the case ought not to be pursued because of the public interest. Despite written representations, it is rare that a lawyer from the CPS review the case before the trial or consider an alternate plea. This guidance is therefore very welcome.

Concerned About Your Case?

If you have not yet instructed a solicitor, now is the best time to do so. In essence, you can take advantage of these new measures to get thorough consideration from the CPS as to whether you need to go to court, and if you are a priority at this time.

If you have already instructed a solicitor, but they are not being proactive with your case, you can switch over to a different solicitor. It is simple – just let us know that you would like us to take over the management of your case, and we will discuss whether that might be possible.

We understand that while many peoples’ lives have slowed down recently, a criminal accusation and the prospect of prosecution brings even more fear into uncertain times. To have a solicitor who does everything in their power to defend your case can help to bring reassurance and to prevent prolonged unnecessary stress.

Contact Rachel Fletcher with any worries or queries you may have about your criminal trial.