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To Prosecute or Not to Prosecute – That is the Question

I have perceived, in recent months, an increase in the amount of airtime and column inches devoted to the way in which the Crown Prosecution Service (the CPS) arrives at a decision as to whether or not persons should be prosecuted for suspected criminal offences. In fact, I cannot think of time where the CPS’ decision making has come under so much fire, in such a wide variety of circumstances.

Recent examples include:

  • The Porn Trial – Simon Walsh was charged with five counts of possessing “extreme pornography”, contrary to section 63 of the Criminal Justice and Immigration Act 2008. He was acquitted by a jury on 8 August 2012. See Myles Jackman’s account of the case here.
  • The Twitter Joke Trial – Paul Chambers was convicted for sending by a public electronic communication network, Twitter, a message of a menacing character contrary to section 127(1)(a) of the Communications Act 2003. His appeal against conviction by way of case stated was allowed by the Divisional Court on 27 July 2012. Considerable controversy surrounds the CPS’ decision to prosecute. See Nick Cohen’s piece here and my summary of the Divisional Court’s decision here. The raw text of the decision itself can be found here.

The examples above demonstrate instances in which the CPS and the DPP’s decision making has been called into question. Considerably less criticism was levelled (understandably, in my view) at the decision to prosecute Rebekah Brooks on three counts of conspiracy to pervert the course of justice.

So, in the light of the foregoing, I thought it might be worth going under the bonnet to look at how the CPS sets about deciding whether or not to bring proceedings against those suspected of committing criminal offences.

The Code for Crown Prosecutors (last revised in February 2010) lays down the principles that apply to deciding whether or not to prosecute. Section 2 of the Code sets out some general principles:

2.1 The decision to prosecute or to offer an individual an out-of-court disposal is a serious step. Fair and effective prosecution is essential to the maintenance of law and order. It is the duty of prosecutors to make sure that the right person is prosecuted for the right offence and to bring offenders to justice wherever possible.


2.4 Prosecutors must be fair, independent and objective. They must not let any personal views about the ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation, or gender identity of the suspect, victim or any witness influence their decisions. Neither must prosecutors be affected by improper or undue pressure from any source. Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction.

At paragraph 2.6 the Code reminds prosecutors that the CPS is a “public authority” for the purposes of section 6 of the Human Rights Act 1998 and that it is accordingly necessary to take the European Convention on Human Rights into account when making decision to prosecute. All sensible stuff.

The Full Code Test

The meat of that matter is to be found in section 4 of the Code. This section lays out what is known as the Full Code Test. The Full Code Test is divided into two distinct stages. The first is the Evidential Stage. The second is the Public Interest Stage. Before setting out the specific requirements of those stages, the Code provides the following:

  • In the vast majority of cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed. (See para 4.2)
  • Prosecutors should only take such a decision when they are satisfied that the broad extent of the criminality has been determined and that they are able to make a fully informed assessment of the public interest. (See para 4.3)

This preambular is important. Decisions to prosecute at a stage when the investigation into the circumstances underlying a potential charge is half-baked is likely to result in a half-baked decision to prosecute.

The Evidential Stage

The first stage of the Full Code Test logically directs prosecutors to consider the available evidence and the degree to which that evidence points to a realistic prospect that the suspected offender will be convicted. Paragraph 4.5 of the Code bluntly provides that a case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.

What does a “realistic prospect of conviction” look like? Paragraph 4.6 provides the answer:

A realistic prospect of conviction is an objective test based solely upon the prosecutor’s assessment of the evidence and any information that he or she has about the defence that might be put forward by the suspect. It 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. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.

Arguably, the Evidential Stage itself divides into two separate stages. The first, as has been shown, requires the prosecutor to determine whether the available evidence, such as it is, gives rise to a realistic prospect that the suspect will be convicted. The second stage, however, addresses the prosecutor’s attention to whether the available evidence can be put before a court. For if the evidence cannot be admitted, it should not be included in the realistic prospect of conviction calculus.

Here, the prosecutor will need to ask herself a number of questions. Are there any concerns about how the evidence was obtained that may lead to its exclusion under, for example, sections 76 or/and 78 of the Police and Criminal Evidence Act 1984? Is the evidence hearsay? If it is, how likely is that it will be admissible under section 114 of the Criminal Justice Act 2003? Or, does the evidence pertain the the suspect’s bad character? If it does, is the evidence admissible via one of the seven gateways under section 101 of the 2003 Act?

The Code takes matters further. In addition to considering the class of the evidence and how it may be admitted in conformity with the rules of evidence, the prosecutor is also required by paragraph 4.7 of the Code to consider its reliability. The following questions apply:

(d) What explanation has the suspect given? Is a court likely to find it credible in the light of the evidence as a whole? Does the evidence support an innocent explanation?

(e) Is there evidence which might support or detract from the reliability of a confession? Is its reliability affected by factors such as the suspect’s level of understanding?

(f) Is the identification of the suspect likely to be questioned? Is the evidence of his or her identity strong enough? Have the appropriate identification procedures been carried out? If not, why not? Will any failure to hold the appropriate identification procedures lead to the evidence of identification being excluded?

(g) Are there concerns over the accuracy, reliability or credibility of the evidence of any witness?

(h) Is there further evidence which the police or other investigators should reasonably be asked to find which may support or undermine the account of the witness?

(i) Does any witness have any motive that may affect his or her attitude to the case?

(j) Does any witness have a relevant previous conviction or out-of-court disposal which may affect his or her credibility?

(k) Is there any further evidence that could be obtained that would support the integrity of evidence already obtained?

What can be seen therefore, is that the Code, taken to its fullest, requires prosecutors to think carefully about a wide range of issues relating to the factual building blocks of a potential prosecution case.

The Public Interest Stage

Prosecutors can only move onto The Public Interest Stage if, and only if, The Evidential Stage has been cleared. To paraphrase, the prosecutor will at this point have reached the conclusion that she has enough evidence in her armoury to give rise to a realistic prospect that a court will convict. The question as to whether a prosecution can be brought has been answered in the affirmative. Now she needs to consider whether a prosecution should be brought. The prosecutor now finds herself in less certain conceptual waters.

The relevant section of the Code (paragraph 4.10) opens with a statement made in 1951 by the then Attorney General, Sir Hartley Shawcross. He said:

It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution.

Prosecution should only be pursued, in Shawcross’ words

… wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest.

The Code is cast in terms whereby it might be said that there is a presumption that prosecution is in the public interest unless there are factors militating against that step.

The prosecutor’s approach to The Public Interest Stage is far less algorithmic than that required by The Evidential Stage. Paragraph 4.13 of the Code provides:

Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits.

Paragraph 4.16 of the Code lists a number of factors tending in favour of prosecution. Such factors include:

  • Upon conviction the suspect would receive a significant sentence
  • The offence was premeditated
  • The presence of a weapon during the suspected offence
  • The suspected offence took place in the presence or within the proximity of children
  • The suspect took advantage of a position of trust or authority
  • The suspect was a ringleader

The Code itself provides a far longer list of aggravating factors, but is written in terms that suggest that list is not exhaustive.

Critically, the Code then goes on to list, at paragraph 4.17 factors that may operate so as to tend against prosecution. These are worth reproducing in full:

(a) the court is likely to impose a nominal penalty;

(b) the seriousness and the consequences of the offending can be appropriately dealt with by an out-of-court disposal which the suspect accepts and with which he or she complies;

(c) the suspect has been subject to any appropriate regulatory proceedings, or any punitive or relevant civil penalty which remains in place or which has been satisfactorily discharged, which adequately addresses the seriousness of the offending and any breach of trust involved;

(d) the offence was committed as a result of a genuine mistake or misunderstanding;

(e) the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement;

(f) there has been a long delay between the offence taking place and the date of the trial, unless:

  • the offence is serious;
  • the delay has been caused wholly or in part by the suspect;
  • the offence has only recently come to light;
  • the complexity of the offence has meant that there has been a long investigation; or
  • new investigative techniques have been used to re-examine previously unsolved crimes and, as a result, a suspect has been identified.

(g) a prosecution is likely to have an adverse effect on the victim’s physical or mental health, always bearing in mind the seriousness of the offence and the views of the victim about the effect of a prosecution on his or her physical or mental health;

(h) the suspect played a minor role in the commission of the offence;

(i) the suspect has put right the loss or harm that was caused (but a suspect must not avoid prosecution or an out-of-court disposal solely because he or she pays compensation or repays the sum of money he or she unlawfully obtained);

(j) the suspect is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is a real possibility that it may be repeated. Prosecutors apply Home Office guidelines about how to deal with mentally disordered offenders and must balance a suspect’s mental or physical ill health with the need to safeguard the public or those providing care services to such persons;

(k) a prosecution may require details to be made public that could harm sources of information, international relations or national security.

Again, as with the list of factors tending in favour of prosecution, it is unlikely that the above list is intended to be exhaustive. However, some remarks may be made about what the authors of the Code deemed necessary to set out expressly within the Code itself.

The factors listed under paragraph 4.17 by and large related to the affect prosecution may have on the suspect; the suspect’s conduct prior to a decision to prosecute (e.g. whether they have taken steps to compensate their victim, if there is one); and the likely outcome of a prosecution in terms of the nature of the sentence the suspect is likely to receive and/or unwanted outcomes, such as the disclosure of sensitive material.

The striking omission, in my view, is that the Code does not include an express factor pertaining to the perception of the service, that is the CPS itself, should it decide that a prosecution should go ahead. Indeed, one might suggest that such an inclusion is merited within the list of factors tending in favour of prosecution as well.

So, in conclusion to this post, I’m going attempt to draft an additional clause that may, if it had been expressly present within the Code, have lead to a different outcome in the cases of Walsh and Chambers:

Would a decision not to prosecute, having regard to common sense and societal attitudes prevailing at the time of the suspected commission of the relevant offence(s), undermine the public’s faith in the Crown Prosecution Service and those associated with it?

And, conversely

Would a decision to prosecute, having regard to common sense and societal attitudes prevailing at the time of the suspected commission of the relevant offence(s), undermine the public’s faith in the Crown Prosecution Service and those associated with it?



  1. K Graham

    Thank you for this very interesting information.

    I have a question of a slightly more practical nature – how exactly do the CPS collect their evidence and make their decisions?

    In deciding whether or not to pursue a prosecution, do the CPS hold a hearing and hear evidence from both sides? Like a preliminary trial? Or is it all done on paper in offices? Would they call people in for private interviews?

    Thanks again!

  2. Pingback: Everyone’s Equal in the Eyes of the Law – Unless you are a Football Fan | The Blue Union

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