CPS News Brief

CPS response to Times editorial on prosecution of journalists

Peter Lewis, Chief Executive of the Crown Prosecution Service, has responded to an editorial published in The Times on Saturday 24 January 2014.

Sir,

Your leader on Saturday questioned the prosecution of journalists, at a time when there are growing demands on our resources.

These cases represent a tiny fraction of the 730,000 prosecutions annually. The underlying question posed by your leader, however, is I suspect a deeper one - whether the compliance of journalistic endeavour with the law is a matter that should merit the attention of prosecutors at all?

A free press is a vital guarantor of our democracy and the rule of law. Courageous and diligent journalists help expose scandals and hold public authorities and individuals to account. Indeed the recent rise in the number of serious sexual cases is, in part, a result of the excellent work undertaken by journalists in this newspaper in exposing the scandal of child protection in some of our cities.

The law affords a great deal of protection to journalists who break the law in pursuing public interest investigations. Our guidance makes clear that journalists who act in this way are unlikely to be prosecuted. However journalistic practices are not above the law either.

The work of two parliamentary select committees and the subsequent Leveson inquiry revealed serious questions over the techniques used by some journalists which may have amounted to systematic and flagrant breaches of the law.

In these circumstances a police inquiry was inevitable as was the subsequent duty on prosecutors to decide if the evidence was sufficient to prosecute as the law stands.

In completed prosecutions across all the related operations there have been 10 journalists convicted of one or more matters, one accepted a caution and seven have been acquitted of all matters while one has seen all matters against them dropped before reaching trial. The CPS has decided that 25 journalists who were the subject of files submitted by the police, should not face prosecution and no further action was taken.

When including non-journalists the total numbers are: 36 people convicted on one or more counts, three have accepted cautions, 15 have been acquitted of all matters and one has seen all matters discontinued before reaching trial. In all 47 people have faced no charges after decisions by the CPS to take no further action. Of course there are a number of cases yet to be completed, but the majority of CPS decisions were made within three months of a full file being received.

It is of course right that the CPS is subject to scrutiny and comment. But just as the vital role of a free, independent, press must be protected and the difficult line that journalists have to follow in pursuit of the truth understood, so too must our role be understood in upholding the rule of law without fear of, or favour to, anyone.

No further action against an individual for misconduct in public office and offences under the data protection act

Gregor McGill, a senior lawyer at the Crown Prosecution Service, said, 

"The CPS has decided that no further action will be taken regarding one individual whose full file was passed to the CPS on 9^th July 2014. After careful consideration it has been decided that there is insufficient evidence for a realistic prospect of conviction for the charge of misconduct in public office, and that separately a prosecution is not in the public interest for an offence under the data protection act.  

“This decision was taken in accordance with the Code for Crown Prosecutors and the Director’s guidelines on assessing the public interest in cases affecting the media.

“Any decision by the CPS does not imply any finding concerning guilt or criminal conduct; the CPS makes decisions only according to the test set out in the Code for Crown Prosecutors and it is applied in all decisions on whether or not to prosecute.”

 

For editors:

The CPS's function is not to decide whether a person is guilty of a criminal offence, but to make fair, independent and objective assessments about whether it is appropriate to present charges for the criminal court to consider. The CPS assessment of any case is not in any sense a finding of, or implication of, any guilt or criminal conduct. It is not a finding of fact, which can only be made by a court, but rather an assessment of what it might be possible to prove to a court, in accordance with the Code for Crown Prosecutors.

This assessment is based on the evidence available arising out of the police investigation and not on the evidence that is likely to be gathered by the defence, and likely to be used to test the prosecution evidence. The CPS charging decision is therefore necessarily an assessment on the basis of the evidence that is available to the CPS at the time the decision is made.

CPS prosecutors must also keep every case under review, so that they take account of any change in circumstances that occurs as the case develops, including what becomes known of the defence case. If appropriate, the CPS may change the charges or stop a case.

CPS and police focus on consent at first joint National Rape Conference

Police and prosecutors have today [Wednesday, 28 January 2015] been given the clearest instructions yet on assessing the vital issue of consent in rape cases.

For the first time, toolkits will spell out situations where a potential victim may have been unable to consent due to incapacity through drink or drugs, for example, or where consent could not reasonably be considered to have been given freely due to the unequal relationship of the parties involved. For example, if the suspect held a position of power over the potential victim – as a teacher, an employer, a doctor or a fellow gang member.

Director of Public Prosecutions Alison Saunders said:

“For too long society has blamed rape victims for confusing the issue of consent – by drinking or dressing provocatively for example – but it is not they who are confused, it is society itself and we must challenge that. Consent to sexual activity is not a grey area – in law it is clearly defined and must be given fully and freely.

“It is not a crime to drink, but it is a crime for a rapist to target someone who is no longer capable of consenting to sex though drink. These tools take us well beyond the old saying “no means no” – it is now well established that many rape victims freeze rather than fight as a protective and coping mechanism. We want police and prosecutors to make sure they ask in every case where consent is the issue - how did the suspect know the complainant was saying yes and doing so freely and knowingly?”

• The capacity to consent should also be questioned where a complainant has mental health issues, learning difficulties or was asleep or unconscious.

 

• The freedom to consent should also be questioned in domestic violence situations and where the complainant may be financially or otherwise dependent on their alleged rapist.

Prosecutors are now being instructed to ask how the suspect knew that the complainant had consented – with full capacity and freedom to do so.

Consent is on the top of the agenda at the first National CPS/Police Rape Conference on Rape Investigations and Prosecutions because it is vital that the public, police, and prosecutors understand this area of law. Over one hundred police and prosecutors attending the conference will discuss the issues and hurdles facing them when dealing with rape cases.

The CPS has created a series of toolkits for prosecuting solicitors and in-house barristers on dealing with the issue both before and at trial. The College of Policing will be publishing updated national policing guidance on rape investigation in the coming weeks.

The new documents published today highlight that context is all-important to the consideration of freedom and capacity to choose and questioning this needs very careful consideration.

The law is very clear. Under s74 of the Sexual Offences Act 2003, consent was redefined in law:

• Someone consents if s/he agrees by choice and has the freedom and capacity to make that choice.

• Consent may be given to one sort of sexual activity but not another, or with conditions, such as wearing a condom. Consent can be withdrawn at any time during sexual activity and each time activity occurs.

• In investigating the suspect, it must be established what steps, if any, the suspect took to obtain the complainant’s consent and the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting.

The CPS must consider issues of consent in rape cases when applying the two stages of the Code for Crown Prosecutor’s Full Code test: (i) the evidential stage; followed by (ii) the public interest stage.

At the conference, DPP Alison Saunders will say,

“Rape cases often turn on the issue of consent and it is vital that we all fully understand what that means. Everyone in this room knows that the typical rapist is not a man in a balaclava in a dark alley. We know that most rapists know their victim, and the trauma of being raped will affect each victim differently. But the issue of consent raises many issues for us to consider, and it is vital we all continue to learn from our experiences to ensure we bring dangerous offenders to justice and protect victims.

“As you will be very aware, we are facing a significant increase in caseload. The number of rape cases going to trial this year is expected to be about 30% more than in 2012/13 - this means that there will be around 550 extra jury trials this year and 650 extra decisions to charge. And, as you know, these cases can be complex – each one requires detailed consideration and sensitive handling. The work we are doing through the National Rape Action Plan will help us to deal with this increased caseload while maintaining and further improving the quality of what we do.

“We have achieved a lot, but there is more to do. The prosecution of rape is of such critical importance that we can never stop striving to be the best we can be. Today is a crucial part of that effort. We have a wide ranging and interesting agenda – I hope it is beneficial for everyone here.…”

At the conference, Assistant Commissioner Martin Hewitt will say,

“As report after report has shown, there is still far too much variation in the way that forces move a complaint of rape through the system. Reporting of sexual offences is up 22% in the latest statistics because of increased confidence in our service and recording but we have further to go. We need to tackle the iconic issues of ‘no further action’ and, particularly, ‘no crimes’ head on and reduce inconsistencies in our processes so that we can send a clear and unequivocal message to victims about how they will be treated.

“Victims of rape are not necessarily vulnerable per se but in most cases they will have been targeted by the offender because of some perceived or actual vulnerability. When we conclude an investigation, and especially when we are taking no further action, we must get better at assessing the risk presented by that vulnerability and putting in place some form of risk management strategy. Equally we also need to be evaluating the future threat posed by a suspect when we are unable to secure sufficient evidence to charge and prosecute in a particular case. This is a fundamental element of public protection, which can potentially give us another chance of prosecution.

“As we work to improve on these areas, we must also remember that, despite all the challenges, we are having real success. Our offer to victims is transformed; we are working better together, dealing with more and more cases, and locking up more rapists.”

Other issues highlighted in the CPS toolkit published today are:

• Steps taken to obtain consent – how did the suspect know the complainant consented to sex and continued to consent to all sexual activity?

• Reasonable belief in consent – were any signs from the complainant that they did not want sexual activity (such as freezing) recognised or ignored?

• Myths and stereotypes – we have highlighted the danger that myths and stereotypes can have in impeding justice in rape cases for many years, and tackling them remains crucial.

ENDS

Editor’s note:

‘What is consent?’

The document ‘What is consent?’ is available on our website via the following link http://www.cps.gov.uk/publications/equality/vaw/what_is_consent.pdf on this page: http://www.cps.gov.uk/publications/equality/vaw/index.html

Alice Gross - Statement from CPS & Met Police

At the end of the investigation into the disappearance and death of Alice Gross, the Metropolitan Police Service (MPS) submitted a report to the Crown Prosecution Service (CPS).  That report proposed that Arnis Zalkalns was responsible for her abduction and murder. 

Although Zalkalns is dead, due to the considerable public interest in this case the CPS reviewed the key evidence and has provided advice to assist in deciding what further investigation, if any, may be appropriate.

Arnis Zalkalns became a person of interest at an early stage of the investigation into Alice’s disappearance but much more evidence and information became available as the police investigation progressed. During the investigation it was not appropriate to provide a running commentary on that evidence. 

Tim Thompson, Deputy Chief Crown Prosecutor for CPS London said:

“I have received a report on the Metropolitan Police investigation into the disappearance and death of Alice Gross. The report concerned Arnis Zalkalns, and the CPS has not been asked to consider any other suspect.

“It is not for the CPS to say whether or not Arnis Zalkalns killed Alice Gross – that would have been for a jury to decide - but instead to determine whether there was evidence which would have provided a realistic prospect of conviction, and therefore enough evidence to charge him with murder.

“I have concluded that the evidence now available would have been sufficient to give rise to a realistic prospect of conviction for murder, applying the Full Code Test in the Code for Crown Prosecutors.

“There is no eye-witness evidence. The scientific evidence does not link Arnis Zalkalns directly to Alice’s death. Nonetheless the evidence as a whole gives rise to a circumstantial case that would clearly meet the full Code test. Of all the people the various strands of evidence might have implicated they in fact point towards Arnis Zalkalns: a person who has previously killed, and concealed the body of a young woman.

“I would therefore have authorised the police to charge Arnis Zalkalns with murder if he had been alive at the time of the report.”

DCI Andy Chalmers, said:

“I am satisfied that the evidence points firmly to Zalkalns as being responsible for the abduction and murder of Alice. I believed it was important for the CPS to assess the evidence that the investigation team had found against him to reassure Alice’s family and the community, who were so affected by her disappearance.

“The public support for our investigation in the local community was overwhelming. I hope that the CPS’s decision that, if he was alive, Zalkalns would have been charged with Alice’s murder will in some way help the community come to terms.”

Some of the evidence pieced together by the investigation team is outlined below:

It is possible to determine, based on the evidence available, that Alice was walking along the Grand Union Tow Path on the afternoon of 28 August 2014, and that Arnis Zalkalns was also cycling north on the tow path on that same afternoon.

The last known sighting of Alice on CCTV is of her walking north at 16:26hrs, the last connection between her phone and a cell mast was at 16:28hrs and her phone disconnected from the network at 17:11hrs. From CCTV evidence, it also appears that Arnis Zalkalns would have overtaken Alice on the tow path at about 16:10hrs. The CCTV suggests that he must have stopped for at least 80 minutes, and when he reappeared on camera his appearance indicated that he may have been in the water.

Arnis Zalkalns returned to the tow path that evening, the following morning - when there is a significant period of time unaccounted for- and again on the evening of 29 August.

Alice Gross’s body was found in the River Brent on 30 September, having been tied into bags.  Elaborate measures had been taken to keep her body submerged. A well-preserved cigarette butt was found metres from where Alice was found, and DNA from that butt has been matched to Arnis Zalkalns. DNA evidence also strongly suggests that Arnis Zalkalns was in contact with Alice’s body. One of the bags used to conceal Alice’s body mechanically matches the next bag remaining on a roll seized from his workplace. The bag was spattered with paint, as was the roll.

An iPhone cover was found concealed in Zalkalns garden.  Whilst it is not possible to positively identify it by reference to a serial number, as it does not have one, Alice’s sister is confident it is hers.

The CPS’s advice does not determine the guilt or innocence of Arnis Zalkalns, which could only be decided by a jury. Instead, it finds that the Full Code test of the Code for Crown Prosecutors would have been met in this case.