Firstly, who makes the decision to prosecute?
Generally the decision to begin any criminal prosecution is made by the Crown Prosecution Service (CPS). Within the CPS there are specialist units who deal specifically with Rape and Sexual Offences.
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.
How does the CPS decide to prosecute?
The CPS has guidance on how to make decisions to prosecute which is contained within the Code for Crown Prosecutors. The Director of Public Prosecutions (DPP) issues this guidance. The Code is available for everyone to look at and can be found on the CPS website (or click on the link above).
Also, available is the CPS Guidance on the Prosecution of Rape cases and the Guidance on Prosecuting Sexual Offences committed against a Child or Young Person (which also provides guidance on the prosecution of historic allegations made by adults of sexual abuse in childhood).
Within the Code there are two tests the CPS can apply when deciding to charge 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. The Threshold test is only applied when an urgent decision needs to be made and the Full Code Test will then be applied as soon as reasonably practicable.
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 to prosecute.
Considering the Evidence.
A Prosecutor must first be satisfied that that there is enough evidence to provide a realistic prospect of conviction on the charges.
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 defendant of the charge or charges alleged.
With regards to allegation of sexual offences, it’s often the case that the only witness to the alleged crime is the complainant (the person who makes the allegation). Therefore the prosecutor has a duty to assess the credibility and reliability of that person. Whilst corroborative (supporting) evidence is always sought by the police as part of the investigation, often such cases involve the evidence only of one person’s word against another. The CPS can make the decision to prosecute when relying on the evidence of the complainant alone.
The CPS guidance states that when a prosecutor is assessing the credibility of a child or young person, they should focus on the credibility of the allegation rather than focusing solely on the complainant and any perceived weaknesses. If a complainant has provided inconsistent accounts, failed to report the allegations soon after they are said to have occurred or been reluctant to co-operate with the authorities, the guidance states that these are not factors, which should themselves be considered weaknesses by the Prosecutor, as they are not uncommon in victims of child sexual abuse.
NOTE! 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 Prosecutor doesn’t consider a case to have passed the evidential test, the matter must not go any further.
Considering if it’s in the public interest.
If the Prosecutor’s view is that the evidential stage has been passed they will next consider if it is 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 Code sets out a number of factors the Prosecutor is to take account of when considering if it’s in the public interest to prosecute.
The CPS have made it clear that in regards to the allegation of rape, it is so serious an offence a prosecution is almost certainly required in the public interest.
The complainant’s right to review.
If the CPS decides not to prosecute, the complainant have the right to seek a review of that decision.
The “Victim’s Right to Review” will consider if the original decision made by the CPS is correct. If the conclusion is that it wasn’t then if it’s still possible, they will remedy it and begin proceedings. The Review might well conclude that the decision was correct and can, if they think appropriate, release further information to the person challenging the decision so they are better informed as to how the decision was made.
NOTE! The CPS can also review their decision if further evidence comes to light. They might then decide to begin proceedings despite deciding otherwise previously.
Is there anything that can be done to stop the CPS prosecuting?
Information or evidence can be submitted to the police by the suspect or his Solicitor for the CPS to consider as part of the charging decision.
This means that pre charge representations can be made to the CPS, inviting them not to prosecute or consider an alternative disposal. However, anyone under investigation and considering making such representations should obtain legal advice. A Solicitor will be able to advise how best to make such 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 their cases to ensure the code is met. Often a further review of the evidence can lead to a decision not to proceed, perhaps when the original decision was wrong, or in light of further information or evidence that comes to light either through further investigations or by those representing the defendant.
If you’d like to discuss anything mentioned in this blog post further please do not hesitate to contact us.
By N Smith