Acid attacks and the CPS response

Alison Saunders, the Director of Public Prosecutions

I wrote recently about the spate of acid attacks and the proposals for dealing with them suggested by some MPs. Today, I want to talk about the comments by the Director of Public Prosecutions, Alison Saunders.

Ms Saunders comments appear to show that she is somebody who has no understanding of the role of the CPS or the law itself. Now Ms Saunders is a very experienced prosecutor and lawyer. She has risen to the very top of her organisation and I do not for a minute believe that she does not understand what the CPS does or what the law is regarding acid attacks.

According to the Guardian newspaper, Ms Saunders said that there is a strong public interest in her authorising the CPS to give out the strongest punishments to acid attackers. I suspect she didn’t say that exactly since it’s not a direct quote and is most likely badly paraphrased by a journalist. But, it’s worth saying that the CPS do not give out punishments. They can influence the final sentence through the offence they charge. The CPS should be selecting the most appropriate charge and bring that against a defendant. This does not always mean charging the offence with the highest penalty, although that will often be the most appropriate thing to do. In practice, there is a strong feeling that the CPS routinely undercharge offenders.

Something that is a direct quote from Ms Saunders is, “you cannot just expect to carry acid around without an excuse. It counts as an offensive weapon just as much as a knife or screwdriver could be”.

Having an offensive weapon in a public place is an offence under section 1 of the Prevention of Crime Act 1953. The definition is simple, it’s a crime to have an offensive weapon in a public place without lawful authority or reasonable excuse. If convicted you can receive a maximum of four years imprisonment.

What is an offensive weapon? I could stab somebody with a fork if I really wanted to but life would be very difficult if forks were illegal – imagine how messy picnics would become! Thankfully, the Lord Chief Justice, Lord Lane stepped in to explain to us that there are three types of offensive weapon in a case called R v Simpson. There are weapons that are offensive per se, i.e. something that was made to be a weapon and has no other purpose, e.g. a Samurai sword. The there are weapons that had a legitimate use but have been adapted to be offensive, e.g. a baseball bat with nails driven through it. Finally, there are items that are not weapons but there is evidence that the defendant intended to use it to cause injury, e.g. a snooker cue wielded by somebody involved in a riot could count.

By now, you should have realised the problem with Ms Saunders comment is that the acid used in these attacks is usually drain cleaner, which is not an offensive weapon per se nor usually one that has been adapted to be used as an offensive weapon. It might be that if the drain cleaner were decanted into a spray can for spraying at a victim there could be an argument that it had been adapted. Since it is for the prosecution to prove that an item has been adapted for use or that an item carried in public is intended to be used to cause injury, it is wholly wrong for the DPP to claim that a suspect must have a reasonable excuse to carry acid on the street – the burden of proof is on the Crown not the defendant.

This is important because it is public statements by politicians and senior lawyers that are likely to be reported and thus reach the minds of people with no legal background who will assume that what they have been told is correct. When they inevitably read reports of people caught carrying acid on the streets not being prosecuted due to a lack of evidence they will be outraged since that appears to be contrary to what they have been promised.

Although the DPP didn’t address it, possessing an offensive weapon is not the only charge available to those using acid – as usual the Victorians have got our backs. Section 29 of the Offences Against the Person Act 1861 is one of the great old offences that outlaws a whole bunch of seemingly unconnected things. In this case, it is illegal to cause gunpowder to explode, send anybody an explosive substance or lay, cast or throw a corrosive fluid on a person with intent to do GBH.

The maximum sentence: life imprisonment (actually, it’s penal servitude for life but I’m pretty sure courts can’t impose that any more despite the Daily Mail’s strong desire for hard labour to be the norm for everything).

Maybe it was section 29 Ms Saunders was thinking of when she promised that offenders who fail to injure their targets would receive life sentences. But again, this raises the prospect of unrealistic expectations forming in the minds of the public. When they are promised life sentences but then see people receiving far less they get angry and they think that judges are soft and then we have to listen to the populist rabble rousers in the Mail et al pontificating on soft sentences. Next we get ill-informed comments from politicians trying to win some more votes, everyone ends up angry and I wind up writing a blog saying that if politicians want everyone to go to prison for life then they should change the law.

Look, I don’t have any problem with the police, prosecution or courts being tough on people who use acid as a weapon. What I don’t like is prosecutors who dumb the law down so far that it becomes unrecognisable, raising expectations in the public, crying out for a future angry Mail front page and doing nothing but garnering column inches for themselves in the newspapers.