Post by Milisha on Dec 12, 2008 20:47:00 GMT -5
The Crown Prosecution Service is the principal public prosecuting
authority for England and Wales and is headed by the Director of
Public Prosecutions. The Attorney General is accountable to
Parliament for the Service.
The Crown Prosecution Service is a national organisation
consisting of 42 Areas. Each Area is headed by a Chief Crown
Prosecutor and corresponds to a single police force area, with one
for London. It was set up in 1986 to prosecute cases investigated
by the police.
Although the Crown Prosecution Service works closely with the
police, it is independent of them. The independence of Crown
Prosecutors is of fundamental constitutional importance. Casework
decisions taken with fairness, impartiality and integrity help deliver
justice for victims, witnesses, defendants and the public.
The Crown Prosecution Service co-operates with the investigating
and prosecuting agencies of other jurisdictions.
The Director of Public Prosecutions is responsible for issuing a
Code for Crown Prosecutors under section 10 of the Prosecution of
Offences Act 1985, giving guidance on the general principles to be
applied when making decisions about prosecutions. This is the fifth
edition of the Code and replaces all earlier versions. For the
purpose of this Code, ‘Crown Prosecutor’ includes members of
staff in the Crown Prosecution Service who are designated by the
Director of Public Prosecutions under section 7A of the Act and are
exercising powers under that section.
© Crown Copyright 2004
Applications for reproduction of this code should be
made to the Crown Prosecution Service
1 INTRODUCTION
1.1 The decision to prosecute an individual is a serious step. Fair
and effective prosecution is essential to the maintenance of
law and order. Even in a small case a prosecution has serious
implications for all involved — victims, witnesses and
defendants. The Crown Prosecution Service applies the Code
for Crown Prosecutors so that it can make fair and consistent
decisions about prosecutions.
1.2 The Code helps the Crown Prosecution Service to play its part
in making sure that justice is done. It contains information that
is important to police officers and others who work in the
criminal justice system and to the general public. Police
officers should apply the provisions of this Code whenever
they are responsible for deciding whether to charge a person
with an offence.
1.3 The Code is also designed to make sure that everyone knows
the principles that the Crown Prosecution Service applies
when carrying out its work. By applying the same principles,
everyone involved in the system is helping to treat victims,
witnesses and defendants fairly, while prosecuting cases
effectively.
2 GENERAL PRINCIPLES
2.1 Each case is unique and must be considered on its own facts
and merits. However, there are general principles that apply
to the way in which Crown Prosecutors must approach every
case.
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2.2 Crown Prosecutors must be fair, independent and objective.
They must not let any personal views about ethnic or national
origin, disability, sex, religious beliefs, political views or the
sexual orientation of the suspect, victim or witness influence
their decisions. They must not be affected by improper
or undue pressure from any source.
2.3 It is the duty of Crown Prosecutors to make sure that the right
person is prosecuted for the right offence. In doing so, Crown
Prosecutors must always act in the interests of justice and not
solely for the purpose of obtaining a conviction.
2.4 Crown Prosecutors should provide guidance and advice to
investigators throughout the investigative and prosecuting
process. This may include lines of inquiry, evidential
requirements and assistance in any pre-charge procedures.
Crown Prosecutors will be proactive in identifying and,
where possible, rectifying evidential deficiencies and in
bringing to an early conclusion those cases that cannot be
strengthened by further investigation.
2.5 It is the duty of Crown Prosecutors to review, advise on and
prosecute cases, ensuring that the law is properly applied,
that all relevant evidence is put before the court and that
obligations of disclosure are complied with, in accordance
with the principles set out in this Code.
2.6 The Crown Prosecution Service is a public authority for the
purposes of the Human Rights Act 1998. Crown Prosecutors
must apply the principles of the European Convention on
Human Rights in accordance with the Act.
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3 THE DECISION TO PROSECUTE
3.1 In most cases, Crown Prosecutors are responsible for
deciding whether a person should be charged with a criminal
offence, and if so, what that offence should be. Crown
Prosecutors make these decisions in accordance with this
Code and the Director’s Guidance on Charging. In those
cases where the police determine the charge, which are
usually more minor and routine cases, they apply the same
provisions.
3.2 Crown Prosecutors make charging decisions in accordance
with the Full Code Test (see section 5 below), other than in
those limited circumstances where the Threshold Test applies
(see section 6 below).
3.3 The Threshold Test applies where the case is one in which it
is proposed to keep the suspect in custody after charge, but
the evidence required to apply the Full Code Test is not yet
available.
3.4 Where a Crown Prosecutor makes a charging decision in
accordance with the Threshold Test, the case must be
reviewed in accordance with the Full Code Test as soon as
reasonably practicable, taking into account the progress of
the investigation.
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4 REVIEW
4.1 Each case the Crown Prosecution Service receives from the
police is reviewed to make sure that it is right to proceed with
a prosecution. Unless the Threshold Test applies, the Crown
Prosecution Service will only start or continue with a
prosecution when the case has passed both stages of the Full
Code Test.
4.2 Review is a continuing process and Crown Prosecutors must
take account of any change in circumstances. Wherever
possible, they should talk to the police first if they are
thinking about changing the charges or stopping the case.
Crown Prosecutors should also tell the police if they believe
that some additional evidence may strengthen the case. This
gives the police the chance to provide more information that
may affect the decision.
4.3 The Crown Prosecution Service and the police work closely
together, but the final responsibility for the decision whether
or not a charge or a case should go ahead rests with the
Crown Prosecution Service.
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5 THE FULL CODE TEST
5.1 The Full Code Test has two stages. The first stage is
consideration of the evidence. If the case does not pass the
evidential stage it must not go ahead no matter how important
or serious it may be. If the case does pass the evidential stage,
Crown Prosecutors must proceed to the second stage and
decide if a prosecution is needed in the public interest. The
evidential and public interest stages are explained below.
THE EVIDENTIAL STAGE
5.2 Crown Prosecutors must be satisfied that there is enough
evidence to provide a ‘realistic prospect of conviction’ against
each defendant on each charge. They must consider what the
defence case may be, and how that is likely to affect the
prosecution case.
5.3 A realistic prospect of conviction is an objective test. It means
that a jury or bench of magistrates or judge hearing a case
alone, properly directed in accordance with the law, is more
likely than not to convict the defendant of the charge alleged.
This is a separate test from the one that the criminal courts
themselves must apply. A court should only convict if satisfied
so that it is sure of a defendant’s guilt.
5.4 When deciding whether there is enough evidence to
prosecute, Crown Prosecutors must consider whether the
evidence can be used and is reliable. There will be many
cases in which the evidence does not give any cause for
concern. But there will also be cases in which the evidence
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may not be as strong as it first appears. Crown Prosecutors
must ask themselves the following questions:
Can the evidence be used in court?
Is the evidence reliable?
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a Is it likely that the evidence will be excluded by the court?
There are certain legal rules which might mean that
evidence which seems relevant cannot be given at a trial.
For example, is it likely that the evidence will be excluded
because of the way in which it was gathered? If so, is there
enough other evidence for a realistic prospect of
conviction?
b Is there evidence which might support or detract from the
reliability of a confession? Is the reliability affected by
factors such as the defendant’s age, intelligence or level of
understanding?
c What explanation has the defendant given? Is a court likely
to find it credible in the light of the evidence as a whole?
Does it support an innocent explanation?
d If the identity of the defendant is likely to be questioned, is
the evidence about this strong enough?
e Is the witness’s background likely to weaken the
prosecution case? For example, does the witness have any
motive that may affect his or her attitude to the case, or a
relevant previous conviction?
f Are there concerns over the accuracy or credibility of a
5.5 Crown Prosecutors should not ignore evidence because they
are not sure that it can be used or is reliable. But they should
look closely at it when deciding if there is a realistic prospect
of conviction.
THE PUBLIC INTEREST STAGE
5.6 In 1951, Lord Shawcross, who was Attorney General, made
the classic statement on public interest, which has been
supported by Attorneys General ever since: “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”. (House of Commons Debates, volume 483,
column 681, 29 January 1951.)
5.7 The public interest must be considered in each case where
there is enough evidence to provide a realistic prospect of
conviction. Although there may be public interest factors
against prosecution in a particular case, often the prosecution
should go ahead and those factors should be put to the court
for consideration when sentence is being passed. A
prosecution will usually take place unless there are public
interest factors tending against prosecution which clearly
outweigh those tending in favour, or it appears more
appropriate in all the circumstances of the case to divert
the person from prosecution (see section 8 below).
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witness? Are these concerns based on evidence or simply
information with nothing to support it? Is there further
evidence which the police should be asked to seek out
which may support or detract from the account of the
witness?
5.8 Crown Prosecutors must balance factors for and against
prosecution carefully and fairly. Public interest factors that
can affect the decision to prosecute usually depend on the
seriousness of the offence or the circumstances of the suspect.
Some factors may increase the need to prosecute but others
may suggest that another course of action would be better.
The following lists of some common public interest factors,
both for and against prosecution, are not exhaustive. The
factors that apply will depend on the facts in each case.
Some common public interest factors in favour of
prosecution
5.9 The more serious the offence, the more likely it is that a
prosecution will be needed in the public interest. A
prosecution is likely to be needed if:
a a conviction is likely to result in a significant sentence;
b a conviction is likely to result in a confiscation or any other
order;
c a weapon was used or violence was threatened during the
commission of the offence;
d the offence was committed against a person serving the
public (for example, a police or prison officer, or a nurse);
e the defendant was in a position of authority or trust;
f the evidence shows that the defendant was a ringleader or
an organiser of the offence;
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g there is evidence that the offence was premeditated;
h there is evidence that the offence was carried out by a
group;
i the victim of the offence was vulnerable, has been put in
considerable fear, or suffered personal attack, damage or
disturbance;
j the offence was committed in the presence of, or in close
proximity to, a child;
k the offence was motivated by any form of discrimination
against the victim’s ethnic or national origin, disability,
sex, religious beliefs, political views or sexual orientation,
or the suspect demonstrated hostility towards the victim
based on any of those characteristics;
l there is a marked difference between the actual or mental
ages of the defendant and the victim, or if there is any
element of corruption;
m the defendant’s previous convictions or cautions are
relevant to the present offence;
n the defendant is alleged to have committed the offence
while under an order of the court;
o there are grounds for believing that the offence is likely to
be continued or repeated , for example, by a history of
recurring conduct;
p the offence, although not serious in itself, is widespread
in the area where it was committed; or
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q a prosecution would have a significant positive impact
on maintaining community confidence.
Some common public interest factors against prosecution
5.10 A prosecution is less likely to be needed if:
a the court is likely to impose a nominal penalty;
b the defendant has already been made the subject of
a sentence and any further conviction would be unlikely
to result in the imposition of an additional sentence or
order, unless the nature of the particular offence requires
a prosecution or the defendant withdraws consent to
have an offence taken into consideration during sentencing;
c the offence was committed as a result of a genuine
mistake or misunderstanding (these factors must be
balanced against the seriousness of the offence);
d 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;
e 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 in part by the defendant;
• the offence has only recently come to light; or
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• the complexity of the offence has meant that there
has been a long investigation;
f a prosecution is likely to have a bad effect on the victim’s
physical or mental health, always bearing in mind the
seriousness of the offence;
g the defendant is elderly or 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 real
possibility that it may be repeated. The Crown
Prosecution Service, where necessary, applies Home
Office guidelines about how to deal with mentally
disordered offenders. Crown Prosecutors must balance
the desirability of diverting a defendant who is suffering
from significant mental or physical ill health with the
need to safeguard the general public;
h the defendant has put right the loss or harm that was
caused (but defendants must not avoid prosecution or
diversion solely because they pay compensation); or
i details may be made public that could harm sources of
information, international relations or national security.
5.11 Deciding on the public interest is not simply a matter of
adding up the number of factors on each side. Crown
Prosecutors must decide how important each factor is in the
circumstances of each case and go on to make an overall
assessment.
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The relationship between the victim and the public interest
5.12 The Crown Prosecution Service does not act for victims or the
families of victims in the same way as solicitors act for their
clients. Crown Prosecutors act on behalf of the public and not
just in the interests of any particular individual. However,
when considering the public interest, Crown Prosecutors
should always take into account the consequences for the
victim of whether or not to prosecute, and any views
expressed by the victim or the victim’s family.
5.13 It is important that a victim is told about a decision which
makes a significant difference to the case in which they are
involved. Crown Prosecutors should ensure that they follow
any agreed procedures.
6 THE THRESHOLD TEST
6.1 The Threshold Test requires Crown Prosecutors to decide
whether there is at least a reasonable suspicion that the
suspect has committed an offence, and if there is, whether it
is in the public interest to charge that suspect.
6.2 The Threshold Test is applied to those cases in which it would
not be appropriate to release a suspect on bail after charge,
but the evidence to apply the Full Code Test is not yet
available.
6.3 There are statutory limits that restrict the time a suspect may
remain in police custody before a decision has to be made
whether to charge or release the suspect. There will be cases
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where the suspect in custody presents a substantial bail risk if
released, but much of the evidence may not be available at
the time the charging decision has to be made. Crown
Prosecutors will apply the Threshold Test to such cases for a
limited period.
6.4 The evidential decision in each case will require
consideration of a number of factors including:
• the evidence available at the time;
• the likelihood and nature of further evidence being
obtained;
• the reasonableness for believing that evidence will
become available;
• the time it will take to gather that evidence and the steps
being taken to do so;
• the impact the expected evidence will have on the case;
• the charges that the evidence will support.
6.5 The public interest means the same as under the Full Code
Test, but will be based on the information available at the
time of charge which will often be limited.
6.6 A decision to charge and withhold bail must be kept under
review. The evidence gathered must be regularly assessed to
ensure the charge is still appropriate and that continued
objection to bail is justified. The Full Code Test must be
applied as soon as reasonably practicable.
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7 SELECTION OF CHARGES
7.1 Crown Prosecutors should select charges which:
a reflect the seriousness and extent of the offending;
b give the court adequate powers to sentence and impose
appropriate post-conviction orders; and
c enable the case to be presented in a clear and simple
way.
This means that Crown Prosecutors may not always choose or
continue with the most serious charge where there is a
choice.
7.2 Crown Prosecutors should never go ahead with more charges
than are necessary just to encourage a defendant to plead
guilty to a few. In the same way, they should never go ahead
with a more serious charge just to encourage a defendant to
plead guilty to a less serious one.
7.3 Crown Prosecutors should not change the charge simply
because of the decision made by the court or the defendant
about where the case will be heard.
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8 DIVERSION FROM PROSECUTION
ADULTS
8.1 When deciding whether a case should be prosecuted in the
courts, Crown Prosecutors should consider the alternatives to
prosecution. Where appropriate, the availability of suitable
rehabilitative, reparative or restorative justice processes can
be considered.
8.2 Alternatives to prosecution for adult suspects include a simple
caution and a conditional caution.
Simple caution
8.3 A simple caution should only be given if the public interest
justifies it and in accordance with Home Office guidelines.
Where it is felt that such a caution is appropriate, Crown
Prosecutors must inform the police so they can caution the
suspect. If the caution is not administered, because the
suspect refuses to accept it, a Crown Prosecutor may review
the case again.
Conditional caution
8.4 A conditional caution may be appropriate where a Crown
Prosecutor considers that while the public interest justifies a
prosecution, the interests of the suspect, victim and
community may be better served by the suspect complying
with suitable conditions aimed at rehabilitation or reparation.
These may include restorative processes.
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8.5 Crown Prosecutors must be satisfied that there is sufficient
evidence for a realistic prospect of conviction and that the
public interest would justify a prosecution should the offer of
a conditional caution be refused or the offender fail to comply
with the agreed conditions of the caution.
8.6 In reaching their decision, Crown Prosecutors should follow
the Conditional Cautions Code of Practice and any guidance
on conditional cautioning issued or approved by the Director
of Public Prosecutions.
8.7 Where Crown Prosecutors consider a conditional caution
to be appropriate, they must inform the police, or other
authority responsible for administering the conditional
caution, as well as providing an indication of the appropriate
conditions so that the conditional caution can be
administered.
YOUTHS
8.8 Crown Prosecutors must consider the interests of a youth
when deciding whether it is in the public interest to
prosecute. However Crown Prosecutors should not avoid
prosecuting simply because of the defendant’s age. The
seriousness of the offence or the youth’s past behaviour is very
important.
8.9 Cases involving youths are usually only referred to the Crown
Prosecution Service for prosecution if the youth has already
received a reprimand and final warning, unless the offence is
so serious that neither of these were appropriate or the youth
does not admit committing the offence. Reprimands and final
warnings are intended to prevent re-offending and the fact
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that a further offence has occurred indicates that attempts to
divert the youth from the court system have not been
effective. So the public interest will usually require a
prosecution in such cases, unless there are clear public
interest factors against prosecution.
9 MODE OF TRIAL
9.1 The Crown Prosecution Service applies the current guidelines
for magistrates who have to decide whether cases should be
tried in the Crown Court when the offence gives the option
and the defendant does not indicate a guilty plea. Crown
Prosecutors should recommend Crown Court trial when they
are satisfied that the guidelines require them to do so.
9.2 Speed must never be the only reason for asking for a case to
stay in the magistrates’ courts. But Crown Prosecutors should
consider the effect of any likely delay if they send a case to
the Crown Court, and any possible stress on victims and
witnesses if the case is delayed.
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10 ACCEPTING GUILTY PLEAS
10.1 Defendants may want to plead guilty to some, but not all, of
the charges. Alternatively, they may want to plead guilty to a
different, possibly less serious, charge because they are
admitting only part of the crime. Crown Prosecutors should
only accept the defendant’s plea if they think the court is able
to pass a sentence that matches the seriousness of the
offending, particularly where there are aggravating features.
Crown Prosecutors must never accept a guilty plea just
because it is convenient.
10.2 In considering whether the pleas offered are acceptable,
Crown Prosecutors should ensure that the interests of the
victim and, where possible, any views expressed by the victim
or victim’s family, are taken into account when deciding
whether it is in the public interest to accept the plea.
However, the decision rests with the Crown Prosecutor.
10.3 It must be made clear to the court on what basis any plea is
advanced and accepted. In cases where a defendant pleads
guilty to the charges but on the basis of facts that are different
from the prosecution case, and where this may significantly
affect sentence, the court should be invited to hear evidence
to determine what happened, and then sentence on that basis.
10.4 Where a defendant has previously indicated that he or she will
ask the court to take an offence into consideration when
sentencing, but then declines to admit that offence at court,
Crown Prosecutors will consider whether a prosecution is
required for that offence. Crown Prosecutors should explain
to the defence advocate and the court that the prosecution of
that offence may be subject to further review.
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10.5 Particular care must be taken when considering pleas which
would enable the defendant to avoid the imposition of a
mandatory minimum sentence. When pleas are offered,
Crown Prosecutors must bear in mind the fact that ancillary
orders can be made with some offences but not with others.
11PROSECUTORS’ ROLE IN SENTENCING
11.1 Crown Prosecutors should draw the court’s attention to:
• any aggravating or mitigating factors disclosed by the
prosecution case;
• any victim personal statement;
• where appropriate, evidence of the impact of the
offending on a community;
• any statutory provisions or sentencing guidelines which
may assist;
• any relevant statutory provisions relating to ancillary
orders (such as anti-social behaviour orders).
11.2 The Crown Prosecutor should challenge any assertion made
by the defence in mitigation that is inaccurate, misleading or
derogatory. If the defence persist in the assertion, and it
appears relevant to the sentence, the court should be invited
to hear evidence to determine the facts and sentence
accordingly.
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12 RE-STARTING A PROSECUTION
12.1 People should be able to rely on decisions taken by the Crown
Prosecution Service. Normally, if the Crown Prosecution
Service tells a suspect or defendant that there will not be a
prosecution, or that the prosecution has been stopped, that is
the end of the matter and the case will not start again. But
occasionally there are special reasons why the Crown
Prosecution Service will re-start the prosecution, particularly
if the case is serious.
12.2 These reasons include:
a rare cases where a new look at the original decision shows
that it was clearly wrong and should not be allowed to
stand;
b cases which are stopped so that more evidence which is
likely to become available in the fairly near future can be
collected and prepared. In these cases, the Crown
Prosecutor will tell the defendant that the prosecution may
well start again; and
c cases which are stopped because of a lack of evidence but
where more significant evidence is discovered later.
12.3 There may also be exceptional cases in which, following an
acquittal of a serious offence, the Crown Prosecutor may, with
the written consent of the Director of Public Prosecutions,
apply to the Court of Appeal for an order quashing the
acquittal and requiring the defendant to be retried, in
accordance with Part 10 of the Criminal Justice Act 2003.
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Mae’r cyhoeddiad hwn ar gael yn y Gymraeg
The Code for Crown Prosecutors
The Code is a public document. It is available on the CPS website:
www.cps.gov.uk
Further copies may be obtained from:
CPS Communications Branch
50 Ludgate Hill
London EC4M 7EX
Tel: 020 7796 8442
Fax: 020 7796 8030
E-mail: publicity.branch@cps.gsi.gov.uk
Translations into other languages and audio or Braille copies are
available. Contact CPS Communications Branch for details.
The CPS Public Enquiry Point can provide general information on
the CPS and advice on who to contact. The unit cannot give legal
advice, but may be able to offer you practical information.
CPS Public Enquiry Point:
Tel: 020 7796 8500
Phone calls may be recorded
E-mail for enquiries and comments:
enquiries@cps.gsi.gov.uk
Complaints can be sent to:
complaints@cps.gsi.gov.uk
authority for England and Wales and is headed by the Director of
Public Prosecutions. The Attorney General is accountable to
Parliament for the Service.
The Crown Prosecution Service is a national organisation
consisting of 42 Areas. Each Area is headed by a Chief Crown
Prosecutor and corresponds to a single police force area, with one
for London. It was set up in 1986 to prosecute cases investigated
by the police.
Although the Crown Prosecution Service works closely with the
police, it is independent of them. The independence of Crown
Prosecutors is of fundamental constitutional importance. Casework
decisions taken with fairness, impartiality and integrity help deliver
justice for victims, witnesses, defendants and the public.
The Crown Prosecution Service co-operates with the investigating
and prosecuting agencies of other jurisdictions.
The Director of Public Prosecutions is responsible for issuing a
Code for Crown Prosecutors under section 10 of the Prosecution of
Offences Act 1985, giving guidance on the general principles to be
applied when making decisions about prosecutions. This is the fifth
edition of the Code and replaces all earlier versions. For the
purpose of this Code, ‘Crown Prosecutor’ includes members of
staff in the Crown Prosecution Service who are designated by the
Director of Public Prosecutions under section 7A of the Act and are
exercising powers under that section.
© Crown Copyright 2004
Applications for reproduction of this code should be
made to the Crown Prosecution Service
1 INTRODUCTION
1.1 The decision to prosecute an individual is a serious step. Fair
and effective prosecution is essential to the maintenance of
law and order. Even in a small case a prosecution has serious
implications for all involved — victims, witnesses and
defendants. The Crown Prosecution Service applies the Code
for Crown Prosecutors so that it can make fair and consistent
decisions about prosecutions.
1.2 The Code helps the Crown Prosecution Service to play its part
in making sure that justice is done. It contains information that
is important to police officers and others who work in the
criminal justice system and to the general public. Police
officers should apply the provisions of this Code whenever
they are responsible for deciding whether to charge a person
with an offence.
1.3 The Code is also designed to make sure that everyone knows
the principles that the Crown Prosecution Service applies
when carrying out its work. By applying the same principles,
everyone involved in the system is helping to treat victims,
witnesses and defendants fairly, while prosecuting cases
effectively.
2 GENERAL PRINCIPLES
2.1 Each case is unique and must be considered on its own facts
and merits. However, there are general principles that apply
to the way in which Crown Prosecutors must approach every
case.
1
2.2 Crown Prosecutors must be fair, independent and objective.
They must not let any personal views about ethnic or national
origin, disability, sex, religious beliefs, political views or the
sexual orientation of the suspect, victim or witness influence
their decisions. They must not be affected by improper
or undue pressure from any source.
2.3 It is the duty of Crown Prosecutors to make sure that the right
person is prosecuted for the right offence. In doing so, Crown
Prosecutors must always act in the interests of justice and not
solely for the purpose of obtaining a conviction.
2.4 Crown Prosecutors should provide guidance and advice to
investigators throughout the investigative and prosecuting
process. This may include lines of inquiry, evidential
requirements and assistance in any pre-charge procedures.
Crown Prosecutors will be proactive in identifying and,
where possible, rectifying evidential deficiencies and in
bringing to an early conclusion those cases that cannot be
strengthened by further investigation.
2.5 It is the duty of Crown Prosecutors to review, advise on and
prosecute cases, ensuring that the law is properly applied,
that all relevant evidence is put before the court and that
obligations of disclosure are complied with, in accordance
with the principles set out in this Code.
2.6 The Crown Prosecution Service is a public authority for the
purposes of the Human Rights Act 1998. Crown Prosecutors
must apply the principles of the European Convention on
Human Rights in accordance with the Act.
2
3 THE DECISION TO PROSECUTE
3.1 In most cases, Crown Prosecutors are responsible for
deciding whether a person should be charged with a criminal
offence, and if so, what that offence should be. Crown
Prosecutors make these decisions in accordance with this
Code and the Director’s Guidance on Charging. In those
cases where the police determine the charge, which are
usually more minor and routine cases, they apply the same
provisions.
3.2 Crown Prosecutors make charging decisions in accordance
with the Full Code Test (see section 5 below), other than in
those limited circumstances where the Threshold Test applies
(see section 6 below).
3.3 The Threshold Test applies where the case is one in which it
is proposed to keep the suspect in custody after charge, but
the evidence required to apply the Full Code Test is not yet
available.
3.4 Where a Crown Prosecutor makes a charging decision in
accordance with the Threshold Test, the case must be
reviewed in accordance with the Full Code Test as soon as
reasonably practicable, taking into account the progress of
the investigation.
3
4 REVIEW
4.1 Each case the Crown Prosecution Service receives from the
police is reviewed to make sure that it is right to proceed with
a prosecution. Unless the Threshold Test applies, the Crown
Prosecution Service will only start or continue with a
prosecution when the case has passed both stages of the Full
Code Test.
4.2 Review is a continuing process and Crown Prosecutors must
take account of any change in circumstances. Wherever
possible, they should talk to the police first if they are
thinking about changing the charges or stopping the case.
Crown Prosecutors should also tell the police if they believe
that some additional evidence may strengthen the case. This
gives the police the chance to provide more information that
may affect the decision.
4.3 The Crown Prosecution Service and the police work closely
together, but the final responsibility for the decision whether
or not a charge or a case should go ahead rests with the
Crown Prosecution Service.
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5 THE FULL CODE TEST
5.1 The Full Code Test has two stages. The first stage is
consideration of the evidence. If the case does not pass the
evidential stage it must not go ahead no matter how important
or serious it may be. If the case does pass the evidential stage,
Crown Prosecutors must proceed to the second stage and
decide if a prosecution is needed in the public interest. The
evidential and public interest stages are explained below.
THE EVIDENTIAL STAGE
5.2 Crown Prosecutors must be satisfied that there is enough
evidence to provide a ‘realistic prospect of conviction’ against
each defendant on each charge. They must consider what the
defence case may be, and how that is likely to affect the
prosecution case.
5.3 A realistic prospect of conviction is an objective test. It means
that a jury or bench of magistrates or judge hearing a case
alone, properly directed in accordance with the law, is more
likely than not to convict the defendant of the charge alleged.
This is a separate test from the one that the criminal courts
themselves must apply. A court should only convict if satisfied
so that it is sure of a defendant’s guilt.
5.4 When deciding whether there is enough evidence to
prosecute, Crown Prosecutors must consider whether the
evidence can be used and is reliable. There will be many
cases in which the evidence does not give any cause for
concern. But there will also be cases in which the evidence
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may not be as strong as it first appears. Crown Prosecutors
must ask themselves the following questions:
Can the evidence be used in court?
Is the evidence reliable?
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a Is it likely that the evidence will be excluded by the court?
There are certain legal rules which might mean that
evidence which seems relevant cannot be given at a trial.
For example, is it likely that the evidence will be excluded
because of the way in which it was gathered? If so, is there
enough other evidence for a realistic prospect of
conviction?
b Is there evidence which might support or detract from the
reliability of a confession? Is the reliability affected by
factors such as the defendant’s age, intelligence or level of
understanding?
c What explanation has the defendant given? Is a court likely
to find it credible in the light of the evidence as a whole?
Does it support an innocent explanation?
d If the identity of the defendant is likely to be questioned, is
the evidence about this strong enough?
e Is the witness’s background likely to weaken the
prosecution case? For example, does the witness have any
motive that may affect his or her attitude to the case, or a
relevant previous conviction?
f Are there concerns over the accuracy or credibility of a
5.5 Crown Prosecutors should not ignore evidence because they
are not sure that it can be used or is reliable. But they should
look closely at it when deciding if there is a realistic prospect
of conviction.
THE PUBLIC INTEREST STAGE
5.6 In 1951, Lord Shawcross, who was Attorney General, made
the classic statement on public interest, which has been
supported by Attorneys General ever since: “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”. (House of Commons Debates, volume 483,
column 681, 29 January 1951.)
5.7 The public interest must be considered in each case where
there is enough evidence to provide a realistic prospect of
conviction. Although there may be public interest factors
against prosecution in a particular case, often the prosecution
should go ahead and those factors should be put to the court
for consideration when sentence is being passed. A
prosecution will usually take place unless there are public
interest factors tending against prosecution which clearly
outweigh those tending in favour, or it appears more
appropriate in all the circumstances of the case to divert
the person from prosecution (see section 8 below).
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witness? Are these concerns based on evidence or simply
information with nothing to support it? Is there further
evidence which the police should be asked to seek out
which may support or detract from the account of the
witness?
5.8 Crown Prosecutors must balance factors for and against
prosecution carefully and fairly. Public interest factors that
can affect the decision to prosecute usually depend on the
seriousness of the offence or the circumstances of the suspect.
Some factors may increase the need to prosecute but others
may suggest that another course of action would be better.
The following lists of some common public interest factors,
both for and against prosecution, are not exhaustive. The
factors that apply will depend on the facts in each case.
Some common public interest factors in favour of
prosecution
5.9 The more serious the offence, the more likely it is that a
prosecution will be needed in the public interest. A
prosecution is likely to be needed if:
a a conviction is likely to result in a significant sentence;
b a conviction is likely to result in a confiscation or any other
order;
c a weapon was used or violence was threatened during the
commission of the offence;
d the offence was committed against a person serving the
public (for example, a police or prison officer, or a nurse);
e the defendant was in a position of authority or trust;
f the evidence shows that the defendant was a ringleader or
an organiser of the offence;
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g there is evidence that the offence was premeditated;
h there is evidence that the offence was carried out by a
group;
i the victim of the offence was vulnerable, has been put in
considerable fear, or suffered personal attack, damage or
disturbance;
j the offence was committed in the presence of, or in close
proximity to, a child;
k the offence was motivated by any form of discrimination
against the victim’s ethnic or national origin, disability,
sex, religious beliefs, political views or sexual orientation,
or the suspect demonstrated hostility towards the victim
based on any of those characteristics;
l there is a marked difference between the actual or mental
ages of the defendant and the victim, or if there is any
element of corruption;
m the defendant’s previous convictions or cautions are
relevant to the present offence;
n the defendant is alleged to have committed the offence
while under an order of the court;
o there are grounds for believing that the offence is likely to
be continued or repeated , for example, by a history of
recurring conduct;
p the offence, although not serious in itself, is widespread
in the area where it was committed; or
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q a prosecution would have a significant positive impact
on maintaining community confidence.
Some common public interest factors against prosecution
5.10 A prosecution is less likely to be needed if:
a the court is likely to impose a nominal penalty;
b the defendant has already been made the subject of
a sentence and any further conviction would be unlikely
to result in the imposition of an additional sentence or
order, unless the nature of the particular offence requires
a prosecution or the defendant withdraws consent to
have an offence taken into consideration during sentencing;
c the offence was committed as a result of a genuine
mistake or misunderstanding (these factors must be
balanced against the seriousness of the offence);
d 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;
e 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 in part by the defendant;
• the offence has only recently come to light; or
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• the complexity of the offence has meant that there
has been a long investigation;
f a prosecution is likely to have a bad effect on the victim’s
physical or mental health, always bearing in mind the
seriousness of the offence;
g the defendant is elderly or 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 real
possibility that it may be repeated. The Crown
Prosecution Service, where necessary, applies Home
Office guidelines about how to deal with mentally
disordered offenders. Crown Prosecutors must balance
the desirability of diverting a defendant who is suffering
from significant mental or physical ill health with the
need to safeguard the general public;
h the defendant has put right the loss or harm that was
caused (but defendants must not avoid prosecution or
diversion solely because they pay compensation); or
i details may be made public that could harm sources of
information, international relations or national security.
5.11 Deciding on the public interest is not simply a matter of
adding up the number of factors on each side. Crown
Prosecutors must decide how important each factor is in the
circumstances of each case and go on to make an overall
assessment.
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The relationship between the victim and the public interest
5.12 The Crown Prosecution Service does not act for victims or the
families of victims in the same way as solicitors act for their
clients. Crown Prosecutors act on behalf of the public and not
just in the interests of any particular individual. However,
when considering the public interest, Crown Prosecutors
should always take into account the consequences for the
victim of whether or not to prosecute, and any views
expressed by the victim or the victim’s family.
5.13 It is important that a victim is told about a decision which
makes a significant difference to the case in which they are
involved. Crown Prosecutors should ensure that they follow
any agreed procedures.
6 THE THRESHOLD TEST
6.1 The Threshold Test requires Crown Prosecutors to decide
whether there is at least a reasonable suspicion that the
suspect has committed an offence, and if there is, whether it
is in the public interest to charge that suspect.
6.2 The Threshold Test is applied to those cases in which it would
not be appropriate to release a suspect on bail after charge,
but the evidence to apply the Full Code Test is not yet
available.
6.3 There are statutory limits that restrict the time a suspect may
remain in police custody before a decision has to be made
whether to charge or release the suspect. There will be cases
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where the suspect in custody presents a substantial bail risk if
released, but much of the evidence may not be available at
the time the charging decision has to be made. Crown
Prosecutors will apply the Threshold Test to such cases for a
limited period.
6.4 The evidential decision in each case will require
consideration of a number of factors including:
• the evidence available at the time;
• the likelihood and nature of further evidence being
obtained;
• the reasonableness for believing that evidence will
become available;
• the time it will take to gather that evidence and the steps
being taken to do so;
• the impact the expected evidence will have on the case;
• the charges that the evidence will support.
6.5 The public interest means the same as under the Full Code
Test, but will be based on the information available at the
time of charge which will often be limited.
6.6 A decision to charge and withhold bail must be kept under
review. The evidence gathered must be regularly assessed to
ensure the charge is still appropriate and that continued
objection to bail is justified. The Full Code Test must be
applied as soon as reasonably practicable.
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7 SELECTION OF CHARGES
7.1 Crown Prosecutors should select charges which:
a reflect the seriousness and extent of the offending;
b give the court adequate powers to sentence and impose
appropriate post-conviction orders; and
c enable the case to be presented in a clear and simple
way.
This means that Crown Prosecutors may not always choose or
continue with the most serious charge where there is a
choice.
7.2 Crown Prosecutors should never go ahead with more charges
than are necessary just to encourage a defendant to plead
guilty to a few. In the same way, they should never go ahead
with a more serious charge just to encourage a defendant to
plead guilty to a less serious one.
7.3 Crown Prosecutors should not change the charge simply
because of the decision made by the court or the defendant
about where the case will be heard.
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8 DIVERSION FROM PROSECUTION
ADULTS
8.1 When deciding whether a case should be prosecuted in the
courts, Crown Prosecutors should consider the alternatives to
prosecution. Where appropriate, the availability of suitable
rehabilitative, reparative or restorative justice processes can
be considered.
8.2 Alternatives to prosecution for adult suspects include a simple
caution and a conditional caution.
Simple caution
8.3 A simple caution should only be given if the public interest
justifies it and in accordance with Home Office guidelines.
Where it is felt that such a caution is appropriate, Crown
Prosecutors must inform the police so they can caution the
suspect. If the caution is not administered, because the
suspect refuses to accept it, a Crown Prosecutor may review
the case again.
Conditional caution
8.4 A conditional caution may be appropriate where a Crown
Prosecutor considers that while the public interest justifies a
prosecution, the interests of the suspect, victim and
community may be better served by the suspect complying
with suitable conditions aimed at rehabilitation or reparation.
These may include restorative processes.
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8.5 Crown Prosecutors must be satisfied that there is sufficient
evidence for a realistic prospect of conviction and that the
public interest would justify a prosecution should the offer of
a conditional caution be refused or the offender fail to comply
with the agreed conditions of the caution.
8.6 In reaching their decision, Crown Prosecutors should follow
the Conditional Cautions Code of Practice and any guidance
on conditional cautioning issued or approved by the Director
of Public Prosecutions.
8.7 Where Crown Prosecutors consider a conditional caution
to be appropriate, they must inform the police, or other
authority responsible for administering the conditional
caution, as well as providing an indication of the appropriate
conditions so that the conditional caution can be
administered.
YOUTHS
8.8 Crown Prosecutors must consider the interests of a youth
when deciding whether it is in the public interest to
prosecute. However Crown Prosecutors should not avoid
prosecuting simply because of the defendant’s age. The
seriousness of the offence or the youth’s past behaviour is very
important.
8.9 Cases involving youths are usually only referred to the Crown
Prosecution Service for prosecution if the youth has already
received a reprimand and final warning, unless the offence is
so serious that neither of these were appropriate or the youth
does not admit committing the offence. Reprimands and final
warnings are intended to prevent re-offending and the fact
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that a further offence has occurred indicates that attempts to
divert the youth from the court system have not been
effective. So the public interest will usually require a
prosecution in such cases, unless there are clear public
interest factors against prosecution.
9 MODE OF TRIAL
9.1 The Crown Prosecution Service applies the current guidelines
for magistrates who have to decide whether cases should be
tried in the Crown Court when the offence gives the option
and the defendant does not indicate a guilty plea. Crown
Prosecutors should recommend Crown Court trial when they
are satisfied that the guidelines require them to do so.
9.2 Speed must never be the only reason for asking for a case to
stay in the magistrates’ courts. But Crown Prosecutors should
consider the effect of any likely delay if they send a case to
the Crown Court, and any possible stress on victims and
witnesses if the case is delayed.
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10 ACCEPTING GUILTY PLEAS
10.1 Defendants may want to plead guilty to some, but not all, of
the charges. Alternatively, they may want to plead guilty to a
different, possibly less serious, charge because they are
admitting only part of the crime. Crown Prosecutors should
only accept the defendant’s plea if they think the court is able
to pass a sentence that matches the seriousness of the
offending, particularly where there are aggravating features.
Crown Prosecutors must never accept a guilty plea just
because it is convenient.
10.2 In considering whether the pleas offered are acceptable,
Crown Prosecutors should ensure that the interests of the
victim and, where possible, any views expressed by the victim
or victim’s family, are taken into account when deciding
whether it is in the public interest to accept the plea.
However, the decision rests with the Crown Prosecutor.
10.3 It must be made clear to the court on what basis any plea is
advanced and accepted. In cases where a defendant pleads
guilty to the charges but on the basis of facts that are different
from the prosecution case, and where this may significantly
affect sentence, the court should be invited to hear evidence
to determine what happened, and then sentence on that basis.
10.4 Where a defendant has previously indicated that he or she will
ask the court to take an offence into consideration when
sentencing, but then declines to admit that offence at court,
Crown Prosecutors will consider whether a prosecution is
required for that offence. Crown Prosecutors should explain
to the defence advocate and the court that the prosecution of
that offence may be subject to further review.
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10.5 Particular care must be taken when considering pleas which
would enable the defendant to avoid the imposition of a
mandatory minimum sentence. When pleas are offered,
Crown Prosecutors must bear in mind the fact that ancillary
orders can be made with some offences but not with others.
11PROSECUTORS’ ROLE IN SENTENCING
11.1 Crown Prosecutors should draw the court’s attention to:
• any aggravating or mitigating factors disclosed by the
prosecution case;
• any victim personal statement;
• where appropriate, evidence of the impact of the
offending on a community;
• any statutory provisions or sentencing guidelines which
may assist;
• any relevant statutory provisions relating to ancillary
orders (such as anti-social behaviour orders).
11.2 The Crown Prosecutor should challenge any assertion made
by the defence in mitigation that is inaccurate, misleading or
derogatory. If the defence persist in the assertion, and it
appears relevant to the sentence, the court should be invited
to hear evidence to determine the facts and sentence
accordingly.
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12 RE-STARTING A PROSECUTION
12.1 People should be able to rely on decisions taken by the Crown
Prosecution Service. Normally, if the Crown Prosecution
Service tells a suspect or defendant that there will not be a
prosecution, or that the prosecution has been stopped, that is
the end of the matter and the case will not start again. But
occasionally there are special reasons why the Crown
Prosecution Service will re-start the prosecution, particularly
if the case is serious.
12.2 These reasons include:
a rare cases where a new look at the original decision shows
that it was clearly wrong and should not be allowed to
stand;
b cases which are stopped so that more evidence which is
likely to become available in the fairly near future can be
collected and prepared. In these cases, the Crown
Prosecutor will tell the defendant that the prosecution may
well start again; and
c cases which are stopped because of a lack of evidence but
where more significant evidence is discovered later.
12.3 There may also be exceptional cases in which, following an
acquittal of a serious offence, the Crown Prosecutor may, with
the written consent of the Director of Public Prosecutions,
apply to the Court of Appeal for an order quashing the
acquittal and requiring the defendant to be retried, in
accordance with Part 10 of the Criminal Justice Act 2003.
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Mae’r cyhoeddiad hwn ar gael yn y Gymraeg
The Code for Crown Prosecutors
The Code is a public document. It is available on the CPS website:
www.cps.gov.uk
Further copies may be obtained from:
CPS Communications Branch
50 Ludgate Hill
London EC4M 7EX
Tel: 020 7796 8442
Fax: 020 7796 8030
E-mail: publicity.branch@cps.gsi.gov.uk
Translations into other languages and audio or Braille copies are
available. Contact CPS Communications Branch for details.
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