WILL I BE Prosecuted?
HOW DECISIONS to prosecute & offer out-of-court disposals are made
Who makes the decision to prosecute?
Most prosecutions in England & Wales are carried out by the Crown Prosecution Service (CPS). Some lower level offences like low value shoplifting can be commenced by the police without being referred to the CPS (although if the case goes to court they must be reviewed by the CPS before the first hearing at the Magistrates’ Court takes place). There are other public authorities who prosecute cases, such as the Department of Work and Pensions, the Environment Agency, the Food Standards Agency, the Gambling Commission, the Health and Safety Executive and the Serious Fraud Office. When the CPS bring a prosecution they do so on behalf of the Crown so a criminal case against David Smith would often be written down as The Queen v David Smith. Sometimes the Latin term Regina is used instead of The Queen, so a criminal case against David Smith would often be written down as Regina v David Smith, or more often abbreviated to R v David Smith.
Prosecutions can also be brought by private individuals, organisations or companies (who do not act on behalf of the police or any other public prosecuting authority), although private prosecutions are subject to restrictions for some offences and the CPS have the authority to step in and take the case over in certain circumstances.
How is the decision to prosecute made?
THE FULL CODE TEST
"1. Is there sufficient evidence to provide a realistic prospect of conviction? If yes,
2. Is a prosecution required in the public interest?"
In order to bring charges against someone (i.e. to prosecute them) or to offer an alternative to prosecution (an out-of-court disposal such as a caution) the Crown Prosecution Service (CPS) or other public prosecuting authority will have to consider a two-stage test by answering the following questions:
1. Is there sufficient evidence to provide a realistic prospect of conviction? If the answer is yes, then the next question is:
2. Is a prosecution required in the public interest?
This test (which is called the ‘Full Code Test’) is contained in The Code for Crown Prosecutors (available on the CPS website here) which sets out the general principles to be applied by prosecutors when making decisions about whether or not a case should be prosecuted; see also The Director’s Guidance on Charging which contains guidance for the police and CPS on making prosecution decisions.
Stage 1 – Is there a realistic prospect of conviction?
This evidential decision requires the prosecutor to carry out an objective assessment of the strength of the evidence; this includes consideration of any defence which has been put forward. The prosecutor must decide if the evidence is strong enough to provide a realistic prospect of conviction.
‘A realistic prospect of conviction’ means ‘that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged’ (para 4.7 Code for Crown Prosecutors). This is a far lower test than the standard of proof required at trial in a criminal court because for a jury or magistrate(s) to convict a defendant in court at trial the prosecution must prove its case beyond reasonable doubt (i.e. so the jury/magistrates are satisfied so that they are sure of the defendant’s guilt).
In reaching a decision, prosecutors should consider the reliability and credibility of the evidence as well as whether the evidence would be admissible (i.e. of a kind which would be permitted to be used in court). Prosecutors should also consider whether there is any further material which may affect the assessment of the sufficiency of the evidence, such as material held by the police (examined and unexamined) and material which may be obtained through further reasonable lines of enquiry.
If the prosecutor reaches the view that the evidence is not sufficient then the case cannot go any further and no prosecution can follow. If, on the other hand, the prosecutor reaches the view that there is, on balance, sufficient evidence to provide a realistic prospect of conviction then the next question must be asked:
Stage 2 - Is a prosecution required in the public interest?
The Code for Crown Prosecutors clearly states that ‘It has never been the rule that a prosecution will automatically take place once the evidential stage has been met’. The Code adopts the position that a prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those in favour. The Code goes on to state, ‘In some cases the prosecutor may be satisfied that the public interest can properly be served by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal rather than bringing a prosecution.’ (See more on out-of-court disposals below.)
Although the usual process is for prosecutors to consider (Stage 1) the sufficiency of the evidence and then (Stage 2) the public interest, the Code does accept that ‘there will be cases where it is clear, prior to reviewing all the evidence, that the public interest does not require a prosecution.’
Factors to be considered in deciding where the public interest lies
The prosecutor must consider a number of guidance factors set out in the Code for Crown Prosecutors (paragraph 4.14 a-g) to decide if a prosecution is required in the
public interest, including whether the case might best be dealt with by way of an out-of-court disposal such as a caution or conditional caution rather than bringing a prosecution. This is not an exhaustive list, so other matters can properly be taken into account, but in summary those matters to be taken into account are as follows:
a) How serious is the alleged offence? The more serious it is, the more likely it is that a prosecution is required.
b) What is the level of culpability of the suspect? The greater the culpability, the more likely it is that a prosecution is required. This includes the level of involvement, planning/premeditation, benefit from the offending, previous involvement with the criminal justice system, the likelihood of reoffending, the suspect’s age/ maturity and any significant mental or physical ill health or disability. Suspects are likely to have a much lower level of culpability if compelled, coerced or exploited, particularly if they are the victim of a crime linked to their offending,
c) What are the circumstances of and the harm caused to the victim? The victim’s circumstances are highly relevant - the more vulnerable the victim, the more likely it is that a prosecution is required. Was the suspect in a position of authority or trust towards the victim? Was the victim serving the public? Was the alleged offence motivated by any form of discrimination against the victim? If so it is more likely that prosecution is required. Prosecutors should take into account the victim’s views as to the impact of the offence on them and this may also include obtaining the views of the victim’s family. If there is evidence that a prosecution is likely to have an adverse impact on the victim’s physical or mental health it may make a prosecution less likely.
"Significant weight must be attached to the age of the suspect and the best interests and welfare of the child or young person must be considered"
d) What was the suspect’s age and maturity at the time of the offence? Significant weight must be attached to the age of the suspect if they are under 18. Their best interests and welfare must be considered, including whether a prosecution is likely to have an adverse impact on their future prospects that is disproportionate to the seriousness of the offending. The Code states that, ‘Prosecutors must have regard to the principal aim of the youth justice system which is to prevent offending by children and young people. Prosecutors must also have regard to the obligations arising under the United Nations 1989 Convention on the Rights of the Child.’ It is not only chronological age which should be considered, but also maturity. As a starting point, the younger the suspect, the less likely it is that a prosecution is required. However, there may be circumstances which mean that notwithstanding the fact that the suspect is under 18, a prosecution is in the public interest - these include where the offence committed is serious, where the suspect’s past record suggests there are no suitable alternatives to prosecution, or where the absence of an admission of guilt means that out-of-court disposals such as a youth caution or youth conditional caution are not available.
e) What is the impact on the community? The greater the impact of the offending on the community, the more likely it is that a prosecution is required. Prevalence of an offence in a community may cause particular harm to that community, increasing the seriousness of the offending. Community is used as an inclusive term and is not restricted to communities in a particular location; it may relate to people who share particular characteristics, experiences or backgrounds and may include an occupational group.
f) Is prosecution a proportionate response? (i.e. is prosecution proportionate to the likely outcome?) This includes consideration of the cost to the CPS and the wider criminal justice system, especially where it could be regarded as excessive when weighed against any likely penalty (although no public interest decision should be based on this factor alone and regard should be had to all public interest considerations). Also, cases should be capable of being prosecuted in a way that is consistent with principles of effective case management, e.g. in a case involving multiple suspects, prosecution might be reserved for the main participants in order to avoid excessively long and complex proceedings.
g) Do sources of information require protecting? In cases where public interest immunity does not apply, special care should be taken when proceeding with a prosecution where details may need to be made public that could harm sources of information, ongoing investigations, international relations or national security. These cases must be kept under continuing review.
"During the process of considering whether to bring a prosecution, if the prosecutor considers that the case may be properly dealt with by an out-of-court disposal, then this could be offered in appropriate circumstances"
During the process of considering whether to bring a prosecution, if the prosecutor considers that the case may instead be properly dealt with by an out-of-court disposal, then this could be offered in appropriate circumstances. You can read about out-of-court disposals here.
Commencing a Formal Prosecution
If the prosecutor carries out the full code test and considers that there is sufficient evidence for a realistic prospect of conviction and that a prosecution is required in the public interest, a prosecution will be commenced usually by the suspect being charged at a police station or by being sent what is known as a written charge and requisition.
THE THRESHOLD TEST
The Full Code test above requires a consideration of both the sufficiency of the evidence and the public interest.
However, in urgent situations it will not always be possible for a prosecutor to conduct the full code test so they will fall back on what is known as the threshold test. This is designed to deal with situations where all the evidence has not yet been gathered but the seriousness or circumstances of the case justify an immediate charging decision and there are real concerns about releasing the suspect on bail (for example because he presents a substantial risk of interfering with witnesses or evidence, of committing further offences or of going into hiding and not attending court). In these circumstances, the prosecutor can apply the threshold test. For this to be done 5 conditions must be met:
1. Are there reasonable grounds to believe that the suspect has committed the offence?
2. Can further identifiable evidence be obtained (within a reasonable period of time) which, when considering all the evidence together, will provide a realistic prospect of conviction?
3. Does the seriousness or circumstances of the case justify the making of an immediate charging decision? This should be linked to the level of risk created by granting bail.
4. Are there continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case is it proper to do so? Prosecutors should not accept, without careful inquiry, any unjustified or unsupported assertions about risk if release on bail were to take place. Any determination must be based on a proper risk assessment which reveals that the suspect is not suitable to be bailed, even with substantial conditions. Examples include a dangerous suspect who poses a serious risk of harm to a particular person or the public, or a suspect who poses a serious risk of absconding or interfering with witnesses.
5. Is it in the public interest to charge the suspect? If yes, the suspect can be charged.
Any decision to charge under the threshold test must be kept under review, including assessing the evidence to ensure the charge is appropriate and that objections to bail continue to be justified. As soon as the further evidence is received the Full Code Test must be applied.
Reviewing Decisions to Prosecute
The decision to prosecute is one which should be subject to review. Sometimes the circumstances of a case may change as further evidence comes to light. This may, for example, mean that what appeared to be a strong case initially is in fact weak and therefore there is no longer sufficient evidence to provide a realistic prospect of conviction. Paragraph 3.6 of the Code for Crown Prosecutors provides that 'Prosecutors review every case they receive from the police or other investigators. Review is a continuing process and prosecutors must take account of any change in circumstances that occurs as the case develops. This includes what becomes known of the defence case, any further reasonable lines of inquiry that should be pursued, and receipt of any unused material that may undermine the prosecution case or assist the defence case, to the extent that charges should be altered or discontinued or the prosecution should not proceed. If a case is to be stopped, care should be taken when choosing the method of termination, as this can affect the victim’s position under the Victims' Right to Review scheme [see below]. Wherever possible, prosecutors should consult the investigator when considering changing the charges or stopping the case. Prosecutors and investigators work closely together, but the final responsibility for the decision whether or not a case should go ahead rests with the CPS.'
The right To review decisions not to prosecute - CPS Victims' Right to Review Scheme
Where a CPS decision is made not to prosecute a suspect (either because of insufficient evidence or because it is not in the public interest) or to discontinue a case, the alleged victim of the offence or, in some circumstances, their relatives or parents, can seek a review of the decision.
This right of review is contained in the Victims’ Right of Review Scheme (this is a CPS website link). The request for a review should be made within 5 working days of being notified of the decision and, in any event, within 3 months unless there are exceptional circumstances why a review request was not made within that time. A review of the decision is carried out by a prosecutor who has not previously been involved in the case. If it is decided that the decision not to prosecute was wrong, a prosecution will then be started if possible, but there are a number of legal reasons why it might not be possible. Where the view is reached that the decision not to prosecute was correct, this can lead to a separate independent review.
Private individuals or entities (such as limited companies or other organisations) who do not act on behalf of the police or any public prosecuting authority may bring a private prosecution in the criminal courts. The power to do this is contained in section 6(1) of the Prosecution of Offences Act 1985.
Private prosecutions by individuals are relatively rare (and can be expensive due to the need to gather the evidence) but a number of private organisations regularly commence prosecutions. Examples of such organisations are the RSPCA and the Federation Against Copyright Theft. An example of a high profile private prosecution was the case commenced against the Stephen Lawrence murder suspects in 1994.
Are there any Restrictions on bringing a private prosecution?
There are a limited number of restrictions on bringing a private prosecution. Before such a prosecution is commenced for some offences the consent of the Director of Public Prosecutions (the head of the CPS) or the Attorney-General (the chief government legal adviser) is required. Examples of the unusual types of offences requiring consent to prosecute are war crimes and assisting suicide. For a limited number of other unusual criminal offences (e.g. under the Weights and Measures Act 1985) private prosecutions are not permitted.
CPS Intervention in private prosecutions
Another potential curb on the right to pursue a private prosecution is the ability of the CPS to step in and take over a private prosecution in certain circumstances. The power to do this is contained in section 6(2) of the Prosecution of Offences Act 1985. Once taken over the CPS may either continue with the prosecution or bring it to an end.
The CPS might step in and continue a case itself where there is a particular need to do so, such as where there are complex issues within a serious case regarding the disclosure of highly sensitive material or witness protection. Examples of where the CPS might step in and discontinue a case are where the privately prosecuted case interferes with another criminal prosecution or investigation or where the accused has already been dealt with for the offence by way of an out-of-court disposal such as a caution or conditional caution, or where the evidential sufficiency stage or the public interest stage of the ‘full code test’ is not met. Click this link to read more about CPS interventions.
Do private prosecutors have to follow the Code for Crown Prosecutors?
A public prosecution (by the CPS or other public prosecuting authority) should be commenced only when it meets the tests in the Code for Crown Prosecutors. Ideally and in line with best practice private prosecutors should follow the Code and failure to do so (either by failing to follow the evidential and/or the public interest tests) could lead to the CPS intervening and exercising its discretion to bring a private prosecution to a close.