Medical evidence under the Director of Public Prosecution’s Guidance on Charging 2020
The Director of Public Prosecution’s Guidance on Charging (31st December 2020) provides a clear structure in which criminal allegations are investigated and prosecuted. Defence teams must have a detailed working knowledge of the Guidance as part of a proactive pre charge engagement strategy.
This page focuses on Medical Evidence.
The significance of the Guidance for defence teams
The Olliers Investigations Team place huge emphasis in monitoring the police and their compliance with the Guidance as part of our pro-active approach to pre-charge work.
We look to engage with police at an early stage of an investigation. We always consider whether we can make representations against charge, by arguing that there is not a ‘realistic prospect of conviction’ or that it is not in the public interest to prosecute. The Guidance was published on the same day (31st December 2020) as the arrangements for ‘pre charge engagement’ (Annex B Attorney General’s Guidelines on Disclosure 2020).
Director of Public Prosecutions Max Hill QC;
‘There has been a major shift in working practices and priorities throughout the criminal justice system in recent years and it is vital there is clear guidance to help police and prosecutors navigate these effectively.
‘The Attorney General’s guidelines focus on getting disclosure right and getting it done early so its impact on the evidence is known. These are significant changes and we must continue to work collaboratively to embed them.’
At Olliers we regard the Guidelines as a powerful resource during the pre charge engagement process.
The pre-charge relevance of Medical evidence in a criminal case
At Olliers our pre charge team appreciate the potentially huge significance of medical evidence during the investigation stage of a case.
Medical evidence can be crucial in establishing key elements of an offence, the extent of injuries and provide corroboration of an allegation. Essentially it is the evidence of a medically qualified person, able to provide admissible information outside the knowledge the court. It may be provided in the form of statements, reports, or medical notes.
The DPP’s guidance is not definitive. Decisions should be based on the merits of each case and the guidance for specific offences.
Investigators and prosecutors should ensure that medical is requested at an early stage. Regard must be had to specific guidance and protocols.
Medical evidence is not normally required, the evidence of a reliable eyewitness should suffice or clear definition photographs. The provenance of a visual record should be clear.
Actual Bodily Harm
Medical evidence is required where the injury is established through interpretation of medical records/X-rays (for example a fracture) and the injury is not accepted by a suspect. Witness observation and visual record will suffice in other circumstances.
Grievous Bodily Harm, Wounding or attempt murder
Medical evidence will be required to establish the extent of the injuries to justify the charges. The interpretation of medical records, X-rays, or other forms of imaging will be necessary. This should be achieved through a medical report or relevant medical notes.
On rare occasions the offence may be prosecuted without medical evidence. Careful consideration should be given in cases where a complainant does not support a prosecution and release of medical records, but the evidential and public interest tests are met.
Medical evidence should be obtained and local protocols and timeframes adhered to.
A charging decision may nevertheless be possible without medical evidence, depending on the facts of the case, the offence, and whether the decision is made on the Full Code Test or the Threshold Test.
For Full Code cases, key evidence will be available at the point of charge, including medical evidence if required to prove an element of the offence, or rebut an issue raised by the defence.
In Threshold cases, it may not have been possible to obtain a medical report or medical notes. A prosecutor may have to rely upon the police for a description of injuries, current status and latest prognosis. Significantly, information provided by the police must have come from a medical practitioner.
A timescale for a full medical report should accompany the joint action plan in support of the Threshold Test decision.
In anticipated not guilty plea magistrates’ court cases and in all Crown court cases the prosecution must provide details of any medical evidence that is likely to be provided in relation to a complainant or a defendant. This should be done before the first hearing in the magistrates’ court.
The guidance refers to the ‘victim’ although, defence practitioners prefer the term ‘complainant’. Complainants should understand why medical evidence is required. They may decline consent and should not be put under undue pressure. Alternatively they may give informed consent which would allow service of the material or qualified consent which would mean material should not be provided to the defence.
Where medical treatment has been sought, this must be recorded and revealed to the prosecutor unless a statement from a medical practitioner is already part of the prosecution case.
The Guidance recognises ‘the overarching principles’ set out in Sir Brian Leveson’s review of ‘Efficiency in Criminal Proceedings’, the most important of which is perhaps the concept of ‘getting it right first time’
Police officers and prosecutors must comply with this Guidance to ensure that charging decisions are fair and consistent, and comply with the Police and Criminal Evidence Act, the PACE Codes of Practice, and the Code for Crown Prosecutors (“the Code”). As the police get to grips with the Guidance it is inevitable that mistakes will be made. Failure to follow the Guidance may risk cases failing or decisions being subject to legal challenge.
The guidance is issued by the DPP for police use, but the provisions apply equally to other investigators where cases are prosecuted by the CPS
At Olliers we recognise the importance of defence teams being at least as familiar with the obligations upon the police as are their police counterparts.