Who makes the decision to prosecute?
The decision to prosecute is a matter for the Crown Prosecution Service (CPS), not the Court. There are other prosecuting agencies but the main one is the CPS and the principles are the same for each agency. The responsibility to investigate criminal allegations lies with the police and generally once their investigations are concluded, the CPS will make the decision if there should be a criminal prosecution.
The police have retained some limited powers to charge a person with a criminal offence but it is limited to those case where a guilty plea is anticipated and can only be dealt with by the magistrates’ court. However the CPS still have to review the matter before the first court hearing.
When deciding if charges should be brought, the Prosecutor will take into account information they have from the police and other information or evidence that has been submitted to the police by the suspect or his Solicitor.
This means that the person accused can make pre charge representations to the CPS once an investigation has concluded. However, if you are under investigation and considering making such representations you should obtain legal advice. A Solicitor will be able to advise how best to make those representations, what information would be helpful and if it’s in your interest to pass that information to the Police and the CPS at that stage.
Even if a charging decision has already been made and proceedings are underway, the CPS is under a continuing duty to review whether they should prosecute a case. A further review of the evidence could lead to a decision not to proceed, perhaps when the original decision was wrong, or in light of further information.
The CPS has guidance on how to make decisions to prosecute. This is set out in the Code for Crown Prosecutors (the Code) and the Director of Public Prosecutions (DPP) issues this guidance.
Most Solicitors will have the Prosecutor’s duty in mind throughout the case and will advise you if they feel that representations can properly be made to the CPS.
The test the CPS must apply to any prosecution
There are two tests the CPS can apply when deciding to prosecute a suspect with a criminal offence –
- · The Full Code Test
- · The Threshold Test
The most important test is the Full Code Test, as all prosecutions will have this test applied to them at some stage. The Threshold test is only applied when an urgent decision needs to be made and only then in limited circumstances.
The Full Code Test is a two-stage test:
- · The first stage is for the Prosecutor to consider the evidence; and
- · The second stage is for the Prosecutor to consider whether it is in the public interest
Considering the Evidence
A Prosecutor must be satisfied that that there is enough evidence to provide a realistic prospect of conviction on the charges brought.
A Prosecutor should make an objective assessment of the evidence; asking themself if an objective, impartial and reasonable Judge, Magistrate or Jury, when properly directed as to the law and acting in accordance with the law, is more likely than not to convict the accused of the charge or charges alleged.
This evidential test for bringing a prosecution is different to the test a Judge, Magistrates or a Jury will apply when considering if someone should be convicted of a criminal offence. A defendant (a person accused in criminal proceedings) cannot be convicted of a criminal offence unless the court is sure they are guilty. This is a very high standard of proof and it is for the Prosecution to meet that standard. If there is any doubt – the defendant will have the benefit of that doubt and must be acquitted.
If a case being considered by a Prosecutor doesn’t pass the evidential stage then it must not go any further. If it does, the Prosecutor would then consider if it’s in the public interest to prosecute the case.
When is it in the Public Interest to prosecute?
The Prosecutor’s Code states that,
“A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour.”
The prosecutor should consider the seriousness of the offence, the level of culpability of the accused, what has been the harm caused to the alleged victim, if the accused is or was under 18 at the time of the offence, the impact on the community and if a prosecution is a proportionate response.
The Code for Prosecutors is not a code that only the Prosecution should consider and use. When applied by defence Solicitors in making representations, it can often show that a decision to charge should not have been made or the case should be stopped.