Policy guidance on the prosecution of crimes against older people

CPS policy

We recognise that older people are often targeted because of their age and a perception that they are vulnerable. This can have a devastating impact on the victim because they are being targeted for a personal characteristic. Whilst there is no statutory definition of crimes against older people, nor legislation allowing for a sentence uplift to be applied as in hate crime cases, we are committed to ensuring that justice is delivered for older people by prosecuting offences against them and supporting victims and witnesses throughout that process.

This document explains the way in which we deal with crimes where older people have been targeted on the basis of their age or age related vulnerability and how we support older people who are victims and witnesses of crime.

For the purpose of our policy and guidance, the term “victim” is used to describe a person against whom an offence has been committed, or the complainant in a case being considered or prosecuted by the CPS.

Our policy is to:

• Ensure older people have the same access to justice as younger people and are given a voice in the Criminal Justice System.
• Identify crimes targeting older people as early as possible.
• Identify where crimes against older people may cross-over with other policy areas such as domestic abuse, violence against women and girls, hate crime and mental health.  
• Build strong cases with our partners that satisfy the tests within the Code for Crown Prosecutors.
• Support victims and witnesses to give their best evidence.
• Invite courts to increase the sentence for offences against older people on the basis that targeting a vulnerable victim is an aggravating factor increasing the seriousness of the crime.
• Work closely with the police, criminal justice agencies, academics, community stakeholders and other bodies to refresh our understanding of crimes against older people and to improve our response to it.
• Improve awareness of crimes against older people and public confidence to report it which will include publicising successfully prosecuted cases.
• Monitor the implementation of this policy.

When presented with cases that involve older people, we will be aware that:

• Crimes against older people may be underpinned by ageism or prejudice against older people.
• The stereotype based belief that older people as a group are somehow inherently vulnerable, weak, easy targets, ‘out of touch’ and susceptible to scams or more likely to have accumulated savings is an attitude that motivates some crimes against older people.
• Older people with dementia or age related conditions may experience fluctuating capacity. This means that their capacity to understand information and make decisions may change over the course of a short period of time, and it might also fluctuate in relation to different types of decisions.
• We should not make assumptions about the reliability, credibility or competence of a victim or witness to give evidence based on their age or age-related vulnerability.

When deciding whether it is in the public interest to prosecute crimes against older people, our prosecutors must have regard to the Code for Crown Prosecutors. The Code states that where the offence was motivated by any form of prejudice, including against the victim’s age or the suspect targeted or exploited the victim or demonstrated hostility towards the victim based on their age, it is more likely that prosecution is required. Other factors relevant to the public interest include where:

• the suspect is in a position of authority and/or trust in terms of their relationship with the victim;
• the offence has had an impact on the physical, emotional and/or mental health of the victim - research has shown that older victims of crime can suffer more ill-health, both physical and mental, than their peers who have not been victims of crime [Lachs et al, 2006 and Serfaty et al, 2015];
• the offence was repeated or continued over a period of time, or there are grounds for believing that the offence is likely to be continued or repeated;
• the offender has ‘groomed’ the victim so that they feel they have a close relationship with them;
• the victim was considered to be vulnerable by the suspect;
• the victim was injured;
• the suspect used a weapon;
• the suspect made any threats before or after the offence;
•  the suspect planned the offence;
• there is a continuing threat to the health and safety of the victim or anyone else who is, or may become, involved; and
• the suspect has a criminal history, particularly any convictions for offences against older people.

If the evidential test is met in wilful neglect or ill-treatment cases, the public interest will nearly always be in favour of prosecution, due to the position of trust that the suspect held in relation to the victim, as well as the extreme situational vulnerability of the victim.

Prosecutors also need to consider whether a prosecution is likely to have an adverse effect on the victim’s physical or mental health and well-being. If there is evidence that a prosecution is likely to have such an adverse impact on the victim, this may be a significant factor tending against prosecution. The victim’s views should be taken into account, and weighed against other public interest factors, always bearing in mind the seriousness of the offence and what measures or support might be available to minimise the impact on the victim.

Monitoring Crimes Against Older People

The CPS applies an electronic ‘flag’ to Crimes Against Older People on our case management system. Flagging cases helps us to monitor them throughout the prosecution process. Flags can be put on by prosecutors or administrative staff and they put anyone dealing with the case on notice that this policy applies and they will need to think of certain things or follow certain processes, for example thinking about additional support a victim may need. It also allows us to monitor and publish data on our performance in these cases. This helps us to identify trends and patterns, consider where we may need to focus training or perhaps provide additional guidance to prosecutors.

In order to flag and monitor a particular type or category of crime, we need to define it. There is no statutory definition of a crime against an older person. There is also no consensus across Government departments or third sector organisations about what age limit constitutes an older person or older people. The World Health Organisation (WHO) suggests that 60 or 65 are the ages most commonly used in developed countries. The CPS defines an older person as ‘someone aged 65 or over’ which ensures the CPS is aligned with the WHO and also Adult Safeguarding data monitoring and collection. We recognise that setting an age limit is, as the WHO says, arbitrary and we have therefore accompanied this with a flagging definition which aims to ensure we identify, flag and monitor the appropriate cases:

‘Where the victim is 65 or over, any criminal offence which is perceived by the victim or any other person, to be committed by reason of the victim’s vulnerability through age or presumed vulnerability through age’.

Not all older people are vulnerable. Vulnerability can be situational and can change over time. Factors to consider include:

• isolation
• loneliness
• recent bereavement or separation
• literacy (including financial and computer literacy)
• physical environment (scammers may look for signs that homes belong to an older person who is struggling to cope, for example an overgrown garden).

By setting a flagging definition which recognises this reality, we will flag and monitor cases where the offender selects or exploits a victim because they perceive them as vulnerable, or to be an easy target, because of their age. Societal perceptions around age and vulnerability increase the potential of an older person to be a target of crime.

This approach is supported by academic research. The University of Sussex report into Hate Crime and the Legal Process recommended a ‘by reason of’ definition for crimes which target people on the basis of a protected characteristic. The report says, ‘the intentional targeting of an individual by reason of their protected characteristic is, in and of itself, evidence of bias and discrimination’ [Hate Crime and the Legal Process – Options for Law Reform, Walters, Wiedlitzka, Owusu-Bempah and Goodall, University of Sussex, October 2017] . We have therefore adopted this approach in relation to our flagging process for crimes against older people.

It is important that relevant incidents are identified as crimes against older people as early as possible. This will assist us to work with other criminal justice agencies to provide appropriate support to the victim or witness and to present the best evidence to court.

Once a case has been flagged as a crime against an older person, it is CPS policy not to remove the flag for any reason other than administrative error. This signals our commitment to treat all such crimes seriously and to maintain focus on the needs and perspective of the victim throughout.

The legal framework for crimes against older people

There are no specific criminal offences which apply only to older people, however we are aware that older people are more frequently targeted in respect of certain types of crime.

The CPS legal guidance provides detailed information on the relevant legislation as well as links to guidance on other areas such as hate crime, fraud, domestic abuse and coercion and control.

The charges that we select in any prosecution should always reflect the seriousness of the circumstances, any element of pre-meditation or persistence in the defendant’s behaviour, the provable intent of the defendant and the severity of any injury suffered by the victim. The charges must help us to present the case clearly and simply and they must give the court the power to impose the right sentence.

Offending behaviour

Crimes against older people can take many forms including neglect, financial abuse and fraud, verbal abuse, physical and sexual assault, domestic abuse including coercion and control, threats, theft, burglary and criminal damage. Crimes against older people can be perpetrated online or offline or by means of telephone cold calling, mail or doorstep scams or there can be a pattern that includes some or all of this behaviour.

Incidents can be one-off events or form part of a series of repeated and targeted offending. Older people can experience crime not only in their own homes but in other places, for example, in nursing homes, residential care homes, hospitals and in public places.

We recognise that crimes against older people can often take place in a context of abuse and mistreatment involving a partner, family member, close friend or care worker. The CPS Domestic Abuse Guidelines provide detailed information for prosecutors on the gender-based aspect of such offending behaviour as well as the need to avoid assumptions about the victim’s age and the nature of the relationship with their abuser.

Loneliness and isolation can be key risk factors in some types of offending against and targeting of older people. Victims may be more likely to accept contact from a criminal and become victim to a scam if they are lonely or isolated.

We recognise that older people can be targeted for a combination of reasons, including sexual orientation, transgender identity, race, religion and disability. Where there is evidence that offenders are motivated by hostility or demonstrate hostility based on these characteristics this will constitute a hate crime and will be eligible for a sentence uplift. Prosecutors will consider the most appropriate charges and apply to courts for an appropriate increase in sentence, based upon all relevant aggravating features. See the CPS hate crime webpage for more information.

Vulnerability of older victims and witnesses

We recognise the diversity in circumstances of older people and that many older people are not vulnerable or in need of support in any way. However, others will rely on support to manage their affairs and the amount of help required will be different depending on their individual circumstances. These older people can be targeted by offenders because of their actual or perceived age-related vulnerability or where they are in vulnerable circumstances. We are concerned to avoid incorrect judgments being made about an older person’s reliability or credibility as a witness giving evidence in court. Such judgments may lead to an incorrect charging decision or could undermine the potential success of a prosecution.

In accordance with the principles of the Mental Capacity Act 2005, a person must be assumed to have capacity unless there is evidence to prove otherwise. We recognise that even if a victim lacks capacity, or temporarily lacks capacity, they may still be competent to give evidence.

We will:

• Not make assumptions about an older witness’s reliability or credibility, and challenge others who do so
• Ensure that older people are aware of the support that is available to them to give their best evidence
• Review and monitor the support needed, which may vary according to health and circumstance
• Be more likely to prosecute cases where the offence is motivated by any form of prejudice against a person’s age, or evidence of exploitation and targeting based on age, where there is sufficient evidence to do so
• Be mindful that language is important and only use the term ‘vulnerable’ in relation to older people when it is appropriate in the context of the law and facts of the case
• Recognise that the stereotype based belief that an older person is ‘vulnerable’ can be a motivating factor in crimes committed against them.

More information about reliability and credibility of victims and witnesses, as well considerations under the Mental Capacity Act 2005, can be found in the CPS legal guidance on Crimes Against Older People.

Reporting crimes against older people

It is important that all crimes against older people are reported to the police. It is also invaluable for the police to be made aware of any previous behaviour or patterns of behaviour which relate to the same victim or perpetrator, so that all circumstances can be appropriately taken into account.

It is the responsibility of the police to investigate the incident and to gather evidence relating to whether a crime has been perpetrated. Where a crime has been committed, the police investigator is responsible for gathering high quality evidence to support a prosecution. The police will work closely with the NHS, social services and any other responsible authority as part of their investigation.

Reporting a crime, giving a statement and being called to give evidence in court can be very daunting experiences for anyone. We recognise that older people can experience specific barriers in this regard. These can include transport and mobility problems, difficulty standing during court proceedings, difficulties in seeing and hearing, the fear of being removed from their home, reluctance to criminalise the behaviour of a family member, dependence on their abuser, the risk of increased isolation and feelings of shame at being the victim of a scam.

The police are responsible for considering what support measures a victim or witness may need during the investigation process. The CPS is responsible for considering the support required by a victim or witness during the prosecution process. More information is detailed in the ‘support’ section below.

We will also work with other agencies, for example National Trading Standards who are both an investigating and prosecuting authority and can bring both civil actions and criminal prosecutions.

Criminal investigation

We will seek further evidence where necessary from the police to highlight where a victim may have been targeted by reason of their actual or perceived age related vulnerability. We will present this evidence to the court as an aggravating factor increasing the seriousness of the crime.
In some cases, we may advise the police to pursue other reasonable lines of inquiry. This may include looking at previous reported incidents involving the same victim, or the same suspect. It may also involve seeking information or evidence from family members, or agencies such as Social Services and the NHS.

Charging decisions

When making charging decisions in cases of crimes against older people, as in all cases, prosecutors must apply the Code for Crown Prosecutors.

Bail

If there is a real risk of danger, threats or repeat offences, we will seek to protect victims and witnesses by applying to the court to remand the defendant in custody where appropriate, or by asking the court to impose conditions on bail where possible (for example, not to approach any named person or to keep away from a certain area).

Prosecution and sentencing

We will present evidence of all aggravating factors that may increase the seriousness of the offence and the sentence. This will include the impact of the crime upon the victim, any harm caused to them and where they have been targeted by reason of their age-related vulnerability or perceived age-related vulnerability.

Whilst there is no specific criminal legislation relating to older people as victims, sentencing guidelines require courts to increase the sentence for offences against older people who have been targeted because of their age-related vulnerability.

We shall draw the court’s attention to a Victim Personal Statement (VPS), which gives victims an opportunity to describe the effects of the crime upon them, express their concerns and indicate whether or not they require any support. Making a VPS is entirely optional. Victims are entitled to choose whether they would like to read their VPS aloud in court, whether they would like someone else to read it aloud or whether it should be played (if recorded). A Community Impact Statement may also be made to show the impact of offending on the wider community, including where an offender has targeted a number of individuals on the basis of their actual or perceived age related vulnerability.

We have a responsibility to assist the court in sentencing. Prosecutors will apply for appropriate additional or ancillary orders, including restraining orders and compensation for loss, injury or damage. We will always have regard to the victim’s needs, including the question of their future protection and the need to prevent further offending.

The court has a duty to give reasons for, and explain the effect of, the sentence that it imposes.

Withdrawal

Sometimes a victim will ask the police not to proceed any further with their case or will ask to withdraw their complaint. There may be a number of reasons why this might happen, but it does not mean that the case will be automatically stopped. The prosecutor will need to ascertain why support for a prosecution has been withdrawn and consider the risk of further harm and the impact of either proceeding or not proceeding, weighing up all relevant public interest factors. Applying the Code for Crown Prosecutors, we will prosecute all cases where there is sufficient evidence, it is in the public interest to do so and there are no factors that prevent us from doing so.

Case progress – information for victims

Information on how victims of crime are kept informed of case progress can be found on the Victims and Witnesses Section of the CPS website.

Victims’ Right to Review

For qualifying decisions, if a victim requests a review of a CPS decision not to bring proceedings, or to end all proceedings, we will look again at the decision to establish if it was correct. For information on how to ask for a review of a decision see the Victims’ Right to Review Guidance.

Support

It is important to note that the majority of crimes against older people result in a guilty plea from defendants, reducing the need for victims and witnesses to give evidence in court. However where victims and witnesses are required to give evidence, we are committed to supporting them to give their best evidence.

We recognise that older people may need support to enable them to give evidence and to ensure they have equal access to justice. Above all, we recognise that older people must be treated with dignity whatever their circumstances.

We know that those affected by crimes against older people are sometimes reluctant or unable to report the incident without support. Even if support is not required, we know that some older people may not report incidents to the police for fear of repeat victimisation, because the offender is a friend or family member, due to fears about continuing dependency on the perpetrator or removal from their own home and being placed in an institution or care home. Older people may be targeted because of the environment in which they live, for example, in a hospital, care home or in their own home. Even if incidents have been reported, older people may be reluctant to give evidence for fear of intimidation if the perpetrator is prosecuted and they may therefore need help to do so.

Victims who are ‘vulnerable’ or ‘intimidated’ can be supported by applications to the court for Special Measures. Special Measures are a series of provisions that help ‘vulnerable’ and ‘intimidated’ witnesses give their best evidence in court and help to relieve some of the stress associated with giving evidence. Special measures can include the use of screens in court so the victim or witness does not have to see the defendant, or giving evidence from a separate courtroom via a video link. These measures can help reduce stress and anxiety. Automatic reporting restrictions apply to victims of rape and other serious sexual offences. Reporting restrictions can also be applied for in other circumstances, if specific criteria are satisfied, to protect the identity of the victim from being reported in the media.

Where an older witness lacks capacity to make a decision in relation to a case, we will work with his or her appointed representative and in accordance with the principles of the Mental Capacity Act 2005. Where available and appropriate, we will work with Independent Mental Capacity Advocates appointed under the Act to assist older witnesses to make decisions about giving evidence and what support they might need in order to do so.

Where an older person has a disability, the CPS Support Guide for disabled victims and witnesses of crime may be useful.  This guide sets out the range of support available to disabled victims of crime, from the CPS, the police and other criminal justice agencies. The aim of the Guide is to support victims and witnesses with impairments to give their best evidence.

More information can be found on the Victims and Witnesses section of the CPS website.

There are also third sector agencies that can provide tailored and dedicated support to older people who are victims of crime. These include, but are not limited to, Age UK, Age Cymru, Action on Elder Abuse as well as agencies that support victims of domestic abuse.

Equality duty

We are a public authority for the purposes of equality legislation. This policy and our related legal guidance, form a key part of our efforts to meet our obligations under the Public Sector Equality Duty to eliminate unlawful discrimination, harassment and victimisation of people based on their age and to promote equality and good relations.

Working with stakeholders

We work locally and nationally with the police and other partners who have a role in addressing crimes against older people, as well as with individuals, community groups and academics with experience and expertise in relation to such offending. This ensures that we are able to continuously refresh our understanding of the nature of crimes against older people and can improve our response to it.

Monitoring and implementation

The CPS is committed to monitoring the impact of this Policy Guidance. All cases flagged as involving a crime against an older person will be monitored and reviewed as part of the enhanced checks we conduct in accordance with our national hate crime assurance regime.

We will also receive feedback on our performance through our local and national panels that provide scrutiny of CPS cases, decisions and policies.

We publish data and Annual Reports which provide transparent accountability with respect to our performance on crimes against older people.

The CPS is committed to reviewing its publications on an annual basis and this policy guidance and the accompanying legal guidance will be reviewed in accordance with this commitment.

It should be noted that the CPS can only monitor the work of the CPS.

Hate Crime Webpage

We have created a hate crime page on the CPS website, where we have included information on our approach to prosecuting crimes against older people.