Charge of Assault Occasioning Actual Bodily Harm (ABH)

This case requires us to consider whether Harry should be charged with assault occasioning actual bodily harm (ABH) in view of the guidance contained within the Code for Crown Prosecutors.   The Code lays down the principles which the Crown Prosecution Service (CPS) apply when deciding whether to prosecute and any decision is taken in accordance with the Full Code Test (FCT) detailed in section 4.

The first stage of the FCT is the Evidential Stage.  The CPS must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction and will consider the admissibility and reliability of the evidence.  Here consideration is given to whether the evidence has been obtained in breach of the Police and Criminal Evidence Act (PACE) 1984, whether it may be excluded under sections 76 and/or 78 and whether it is admissible under Part 11 of Criminal Justice Act 2003.  There is nothing to suggest the evidence is inadmissible under these provisions.

Next the reliability, credibility and weight of the evidence must be considered.  Harry’s evidence does not give rise to any significant concerns in relation to reliability and/or credibility. He has no previous convictions, is generally well liked and has been provided a good reference by his tutor. Furthermore, the nightclub is described as ‘crowded’ and while it is unclear whether this description relates to the nightclub in general or at the time of the incident, it lends credibility to Harrys assertion Rob was accidently jostled.

Robs evidence is supported by three witness statements which suggests his evidence is also reliable and credible.  However, it would be prudent to consider the relationships between Harry, Chloe and Rob and the role, if any, these may have played in his reporting of the incident.

In terms of Chloe’s evidence, it is not clear how far away from the incident she was or how she came to have an unobstructed view while another witness had his view obscured by other nightclub users. Additionally, while her identification evidence is given increased weight because Harry and Rob are known to her, it is possible her relationship with both men provides a motive for misrepresenting the incident, raising doubts as to the reliability of her evidence.

Anita’s identification evidence is problematic as her eyesight is poor and she was not wearing her glasses on the evening when the incident took place; raising serious concern about the reliability of her identification evidence. However, these concerns may be mitigated depending on how close she was to the incident, whether she knew Harry and Rob and if she was wearing contact lenses.

Dev’s statement does not give rise to any significant concerns about reliability or credibility. However, it is unclear how Dev could positively identify both men and his statement may suggest the nightclub was crowded giving credence to Harrys assertion that Rob was accidently jostled.

Considering the evidence collectively, the Evidential Stage does not appear to be met as it gives rise to reasonable doubt which lessens the prospect of conviction.  Harrys is likely to be considered a reliable witness and his explanation of the incident is plausible.  The witness statements are not sufficiently robust and while witnesses claim to have seen Harry push Rob they have not provide a clear link between Harry pushing Rob and Rob falling and injuring his hand.  Furthermore, it is not clear from the evidence whether the incident and/or witnesses’ perceptions were affected by their relationship to one another, lighting and/or the consumption of alcohol.

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The CPS can only move onto the Public Interest Stage of the FCT if the Evidential Stage is satisfied.  Despite the Evidential Stage not having been satisfied the Public Interest Stage will be applied and the importance of each factor contained within section 4.12 of the Code will be considered.

ABH is a serious criminal offence. From the evidence, it appears the assault was neither premeditated nor sustained.  No weapon was used and there is no evidence to suggest the suspect intended to cause injury.   Furthermore, Harry has no prior convictions and is of previous good character; therefore, further offending is unlikely.   While the offence is considered serious these factors mitigate his culpability and weigh against prosecution.

It does not appear that a position of trust or authority exists between Harry and Rob.  Neither does it appear the attack was discriminatory in nature.  However, it is not clear whether Rob is vulnerable and/or a public servant and does not provide an insight into the impact the assault and/or injuries had on him. In terms of harm caused, the definition of harm is quite wide but in the context of the offence can include injuries which are not especially serious such as minor cuts and scratches. Therefore, Rob suffered injuries which are serious in the context of the offence.  While the harm caused weighs in favour of prosecution it is difficult to consider whether this is appropriate under section s4.12(c) because the circumstance of Rob are unknown.

Harry is a university student; therefore, it is reasonable to conclude he is over the age of eighteen.  His age is unlikely to be weighed against prosecution under section s4.12(d).

In the absence of a Community Impact Statement it is difficult to assess the effect on the community under s4.12(e).   The assault was not violent or sustained and the suspect is unlikely to re-offend therefore the long-term effect can be assessed as minimal and prosecution may be perceived by the community as excessive.   Conversely, a decision not to prosecute may undermine the confidence of the community and victim in the criminal justice system.

The maximum sentence for ABH is five years although in this case it is unlikely Harry will receive a prison sentence and a nominal penalty is expected to be imposed.  Furthermore, conviction may have serious implications for Harry depending on his area of study. Therefore, prosecution may be considered excessive under s4.12(f) given the cost of proceeding to court, the nominal penalty likely to be imposed, and the disproportionate long term effect on Harry.

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Had the case passed the Evidential Stage and proceeded to the Public Interest Stage more information should be sought on the circumstances of Rob and impact the offending had on the community.  On the face of it however, prosecution does not appear to be in the publics best interest.

Applying the Code to the facts of this case the Evidential Stage is not sufficiently satisfied and Harry should not be charged with ABH.

In his articles Stop and Search and Police Legitimacy: Part 1 and Stop and Search and Police Legitimacy: Part 2 Neil Parpworth makes a compelling argument for the inclusion of elements of the voluntary ‘Best Use of Stop and Search’ (BUSS) scheme into statute.  Parpworth considers that while the BUSS scheme promised greater transparency, community involvement and improved stop and search outcomes, delivered by intelligence led approaches and increased monitoring, the report PEEL: Police legitimacy 2015 published by Her Majesty’s Inspectorate of Constabulary (HMIC) reveals that forces around the country are failing to comply with the scheme.  Parpworth reasons that membership of the voluntary scheme has not driven the desired change and the lack of compliance highlights the need for primary legislation.

While intelligence led stop and search is an important police tool, Parpworth argues that the PEEL report reveals a concerning lack of commitment from Chief Constables in terms of ensuring the BUSS scheme is implemented effectively and search powers used legitimately.  Chief Constables play a pivotal role in terms of the internal scrutiny of stop and search yet their leadership in this area was found to be inconsistent.  While some forces had made efforts to ensure the scheme was communicated effectively and its importance recognised, others had made little attempt to communicate the scheme and promote its value.  Parpworth asserts this reluctance to advocate and communicate the importance of the scheme ultimately devalues it, reducing its prospects of success.  This he claims is demonstrated by the perception among officers that the stop and search function operates effectively without the need for additional canons and greater scrutiny.

Under section 3 of the PACE 1984 officers are required to record each time they use their stop and search powers; this record should include grounds for the stop and search and show that those grounds were reasonable.  This provision, as Parpworth explains, is reinforced by the BUSS scheme which requires forces record outcomes and publish data about the connection between each search and outcome.  Parpworth argues that while these provisions aim to establish how frequently reasonable grounds were proven to be accurate, PEEL highlights that reasonable suspicion is frequently absent in many instances.  He suggests this indicates the concept of reasonable suspicion is interpreted widely by police officers in practice and that there are marked differences in interpretation between forces.  Moreover, Parpworth expresses concern over searches which were made on the basis that the police officer smelled cannabis. Parpworth suggests that while this is sufficient grounds to justify a search it is subjective and may provide a convenient way of meeting the statutory requirement for reasonable suspicion, possibly lending itself to an abuse of the stop and search power.   Parpworth also expresses concern that in cases where reasonable suspicion was found to be absent supervisors had endorsed the records of their subordinates.  He suggests this indicates either a lack of understanding at senior level as to what constitutes reasonable suspicion or a failure to exercise due diligence.  Despite the BUSS requirement that the link between stop and outcome be recorded Parpworth interprets the lack of reasonable suspicion as evidence police forces are not monitoring the use of their powers effectively.

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Equally, while the BUSS scheme aimed to improve the stop to arrest ratio, Parpworth explains that the rates remain relatively low.  Despite HMIC holding the view arrest rates are a misleading measure of success Parpworth explains HMIC do acknowledge the low stop to arrest ratio suggests the power is being used ineffectively.

While Parpworth acknowledges that since the scheme has been in place the disproportionate impact on black, Asian and minority ethnic (BAME) groups has decreased.  He goes on to explain that the PEEL report suggests some forces continue to exercise their powers of stop and search on stereotypical assumptions rather than intelligence or reasonable suspicion.    Parpworth explains that one of the principle reasons for the scheme is to encourage better relationships between the police and the racially diverse communities they serve.  Nevertheless, some police forces could not explain the reason why particular BAME groups had been stopped more often than others despite the provisions within the BUSS scheme.   Parpworth argues that this disproportionality damages the relationship between the police and community and undermines the legitimacy of the police.   Parpworth questions how, if forces are failing to monitor the impact of stop and search on BAME groups, police-community relations can improve.

Parpworth concludes that despite all forces voluntarily signing up to the scheme when it was launched by the Government in 2014 only eleven forces were found to be fully compliant when assessed in 2015.  Furthermore, thirteen forces were found to be non-compliant with three or more of the five aspects of the scheme and were immediately suspended.  Parpworth suggests the scheme has failed to achieve its intended purpose and that converting elements of the voluntary scheme into statute will compel forces to observe key features of the scheme which should lead to better use of the stop and search power.

The IRAC method helped me structure my answer by providing me with a comprehensive analysis framework.  I began by reviewing the facts so I could identify the issue e.g. whether the Evidential Stage had been met.  Then I considered what legal rules applied to the issues I had identified e.g. PACE 1984 and the Code of Crown Prosecutors.  Next I took the legal rules and applied them to the issues I had identified focusing on the facts relevant to the questions to reach the conclusion that the Evidential Stage had not been met.

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