The CPS is right not to prosecute Prince Philip: It is not in the public interest to do so

It is not in the interests of justice to prosecute the Duke of Edinburgh, Prince Philip, a man who has served the United Kingdom and Commonwealth realms as the consort of Elizabeth II for more than six decades. In 2016, Prince Philip was chauffeur to the then US President Barack Obama and his wife Michelle when the two were greeted with a Royal welcome at the doors of their helicopter when it touched down on the Windsor Castle estate. The drive was without issue or incident. It was enjoyed by the then President who told reports “I have to say I have never been driven by a Duke of Edinburgh before, but I can report it was very smooth.”

The charge considered by the CPS after Prince Philip’s Land Rover crashed with a Kia, on 17th January this year, was seemingly one of careless driving contrary to section 3 of the Road Traffic Act 1988.

Careless, and inconsiderate, driving

If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence.

A press statement issued by the CPS, communicated to Sandringham House, did not name the Prince but referred to “a driver involved in a collision on the A149 at Sandringham”.

The CPS itself did not state or propose exactly what charge the Prince might have faced.

What it did say was this, via a press statement from the Chief Crown Prosecutor for CPS East England:

The CPS has carefully reviewed material submitted by the police in relation to a traffic collision on the A149 on 17 January this year. We took into account all of the circumstances in this case, including the level of culpability, the age of the driver and the surrender of the driving licence. We have decided that it would not be in the public interest to prosecute. All those involved in the collision have been informed and provided with a full explanation in writing.

So how did the CPS make its decision not to prosecute in this instant case?

Facts. What did the CPS mean when it stated it ‘has carefully reviewed material submitted [to it] by the police’? The CPS will have liaised with police so that it surely had a grasp of the facts. The facts to be taken into account for any charging decision must be accurate and adequate as stated. Here, the facts can be stated shortly. The Prince drove out of his driveway. He wrongly drove into the way of a Kia car driven by a woman, aged 28, in which another woman was a passenger and also a nine-month-old child. As a result of the crash, one woman’s wrist was broken. The Prince himself was uninjured. Purely as a precaution he was seen by a doctor. The speed limit on that stretch of the road is 60 miles per hour. The Prince had not sufficiently well checked that the road was clear before he manoeuvred. He was breathalysed. He was not intoxicated: the test result was negative. Witnesses saw the crash. One said that the Prince’s car “came across the A149 like a somersault. It was turning on its side over and over”.

All of the circumstances of the case. What did the CPS mean when it stated it ‘took into account all of the circumstances in this case’? The CPS meant by this that it had regard not only to all evidence obtained and presented to it by police. The CPS meant it also took into account any item of material – a record, a document, a letter, medical information – given to it by or on behalf of the Prince. Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction. This is what it means to identify where the public interest lies in what can be tricky, complex cases of some nuance. This is exactly one of those types of cases. The first part of the test for whether or not to prosecute is whether there is sufficient evidence against Prince Phillip. When deciding, these questions need to be asked: can the evidence be used in court; is the evidence reliable; is the evidence credible; and is there any other material that might affect the sufficiency of evidence?

This is why the CPS stated that it had regard to information ‘including’ factors to which it then referred.

It is not possible to analyse all the evidence in the case and I cannot answer the questions above. It is not possible to give an informed opinion on the evidential standard. However, this blog will assume that the evidential test has been met. Assuming the CPS came to the same conclusion, the prosecutor would have needed to be satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour.

We agree with the CPS. We do think that the public interest factors outweigh arguments in favour of prosecution and prosecution is not a proportionate response. That is our view for these reasons.

The level of culpability. On the eve of his wedding to Princess Elizabeth in 1947, to-be Prince Philip was stopped for speeding next to Buckingham Palace. Since then, the Prince has had, and has demonstrated for decades, an unremarkable driving record. His driving generally has been safe and fine.

Since the incident, the world has heard and read of the ordeal. The crash might have been a public relations disaster both for the Prince and Buckingham Palace but for the steps taken by the Prince to show acknowledgement and sensitivity. This is an important point. Lawyers are but one kind of professional offering PR services. In our experience, almost invariably, with few exceptions in practice, there is real force and purpose in a person who potentially faces accusation (by voluntary or involuntary interview and/or charge) moving quickly to take such similar steps.

Two days after the crash, photographs were taken of Prince Philip driving a replacement Land Rover car whilst himself not wearing a seat belt. That incident itself might have given rise to a prosecution for a criminal offence, but police surely were right to have taken the proportionate course police did take. No one else was in the car. No other driver or pedestrian was nearby. Norfolk Police reportedly gave words of advice to Prince Philip.

The age of the driver. Now aged 97, Prince Philip has had a hip replacement, and he relies on wearing glasses and using a hearing aid. The CPS expressly took into consideration the Prince’s age. Age is not mentioned in the sentencing guideline under culpability for dangerous driving. The contemplated charge was seemingly one of careless driving.

The surrender of the driving licence. Days later, Buckingham Palace issued a press statement to the effect that the Prince had voluntarily given up his driving licence. These statements and actions tend to show that the Prince expressed insight into the upset and inconvenience he caused and had empathy for the occupants of the Kia. This is relevant to insight and likely (lack of) future risk. The Queen’s husband since 1947 addressed a letter of apology to the occupants of the Kia car, sent four days after the crash. He there evinced what seems genuine regret: he penned that he was ‘very contrite’. On Sandringham House-headed notepaper the Prince recorded his acknowledgement that the crash must have been, for the occupants of the Kia, a “very distressing experience”. He wrote “I would like you to know how very sorry I am for my part in the accident. The sun was shining low over the main road. In normal conditions I would have no difficulty in seeing traffic coming… but I can only imagine that I failed to see the car coming, and I am very contrite about the consequences.” The CPS was right to have taken into account that the response of the occupants of the Kia was to reject this apology as inadequate without the occasion of a court hearing. The CPS was also right not to have treated any such response as determinative, without more, of the outcome.

We have decided that it would not be in the public interest to prosecute. The CPS had a duty to consider all the circumstances in the case in accordance with the Code for Crown Prosecutors. This is a guidance document issued by the Director of Public Prosecutions. Regard must be had to it in all cases of possible prosecution. The questions to be asked when determining public interest factors are not exhaustive and therefore not limited to the questions in the Code for Crown Prosecutors. So: further questions could have been asked by the CPS. Whilst the CPS has not specified or clarified in its press statement what it considered these were, one would assume that some of the factors would have been:

• Prince Philip is the husband of Queen Elizabeth II and the Commonwealth realms’ longest-serving consort as well as the oldest spouse ever of a reigning British monarch
• He served in World War 2
• He represents the UK as an ambassador to the rest of the world and has so served for 52 years
• He served as the UK President of the World Wildlife Fund for over 20 years
• He is a Lord High Admiral of the Royal Navy

The CPS was entitled to have considered this aspect of Realpolitik.

All those involved in the collision have been informed and provided with a full explanation in writing. Decisions of prosecutors are taken inclusive of any item of material which a person or a legal representative might have taken care to collate and prepare. We make sure to put the CPS on notice, as soon as instructed in a case, that we intend to do exactly that – and have done with strong outcomes.

Outcome. Prosecutions can be headed off at the earliest outset. Prosecutions can be diverted so as to dovetail with voluntary measures.

Right call by the CPS?

Its only right and fitting that Prince Philip should not be charged. For the CPS to prosecute this man would make a mockery of our justice system.

Co-author: Abigail Bright of Doughty Street Chambers