CODE FOR CROWN PROSECUTORS – CONSULTATION DOCUMENT
The Crown Prosecution Service and the Revenue and Customs Prosecutions Office merged in January 2010 to form the principal public prosecution service for England and Wales. That service is headed by the Director ofPublic Prosecutions [DPP] who exercises his function independently, subject to the superintendence of the Attorney General who is accountable toParliament for the work of the service.
The prosecution service is a national organisationconsisting of a number of Specialist Casework Divisions based in Headquarters, 42 geographical Areasand CPS Direct. The Specialist Casework Divisions deal with the service’s most complex or sensitive cases. Each geographical Area is headed by a Chief CrownProsecutor and corresponds to a single police force area, with onefor London. CPS Direct is the national out-of-hours service that provides advice about any appropriate charges on behalf of the 42 Areas in England and Wales.
The DPP is responsible for issuing a Code for Crown Prosecutors [the Code] under section 10 of the Prosecution of Offences Act 1985. This is the sixth edition of the Code and replaces all earlier versions.
In this Code, the term “prosecutor” is used to describe members of theprosecution service who are designated as Crown Prosecutors; prosecutors who are members of the Revenue and Customs Prosecutions Office; and Associate Prosecutors who are designated under section 7A of the Prosecution of Offences Act 1985 and who exercise their powers in accordance with the current instructions issued by the DPP.
The Code helps the prosecution service to play its part in making sure that justice is done. It contains information that is important to investigators and others who work in the criminal justice service and to the general public. Investigators should apply the provisions of this Code whenever they are responsible for deciding whether to charge a person with an offence.
Although the prosecution service works closely with investigators, it is independent of them. The independence of prosecutors is of fundamental constitutional importance.
The prosecution service co-operates with the investigatingand prosecuting agencies of other jurisdictions to facilitate enquiries and prosecutions both in England and Wales and abroad.
1INTRODUCTION
1.1The Code is one of two published and publicly available documents that explain the purpose and work of the public prosecution service. The other is the Core Quality Standards booklet. Only the Code is issued by law.
1.2Together, they let the public know what prosecutors do; how they take their decisions; and the level of service that the prosecution service is committed to providing in every key aspect of its work.
1.3The Code and the Core Quality Standards booklet are available from any of the contact points listed on the back cover of this booklet.
1.4The Code sets out the general principles to be applied when making decisions about prosecutions. Effective prosecution is essential to the maintenance of law and order and casework decisions taken with fairness, impartiality and integrity help deliver justice for victims, witnesses, defendants and the public.
1.5The Code also explains the work which prosecutors must undertake in addition to the decision whether to prosecute.
2GENERAL PRINCIPLES
2.1Although each case must be considered on its own facts, there are general principles that applyto the way in which prosecutors must approach everycase.
2.2Prosecutors must be fair, independent and objective. They must not let any personal views about ethnic or national origin, disability, gender,age, religious beliefs, political views, the sexual orientation, or gender identity of the suspect, victim or witness influence their decisions. They must not 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.
2.3The prosecution service is a public authority for the purposes of the Race Relations Act 1976 (as amended), the Disability Discrimination Act (as amended) 1995 and the Equality Act 2006. Prosecutors must have due regard to the need to promote race, disability and gender equality when taking prosecution decisions.
2.4The prosecution service is also a public authority for thepurposes of the Human Rights Act 1998.Prosecutorsmust apply the principles of the European Convention onHuman Rights, in accordance with the Act, at each stage of a case.Prosecutors must also have due regard to any guidelines issued by the Attorney General.
3THE DECISION WHETHER TO PROSECUTE
3.1Prosecutors must ensure that they have all the information they need to make an informed decision about how best to deal with the case. This will often involve prosecutors providing guidance and advice to investigators about lines of inquiry, evidential requirements and assistance in any pre-charge procedures throughout the investigative and prosecuting process.
3.2Prosecutors should identify and, where possible, rectify evidential weaknesses but stop swiftly cases that cannot be strengthened by further investigation, or where the public interest clearly does not require a prosecution.
3.3Prosecutors decide whether a person should be charged with a criminal offence, and, if so, what that offence should be, in the more seriousor complex cases. Prosecutors make these decisions in accordance with this Code and the DPP’s Guidance on Charging. The police apply the same principles in deciding whether to charge a person in those cases for which they are responsible.The decision whether to continue a prosecution rests with the prosecutor.
3.4Prosecutors must make sure that they do not allow a prosecution to start or continue where to do so would be likely to be seen by the courts as oppressive or as an abuse of the process of the court; or if it would otherwise be unfair to do so.
3.5Prosecutors should only start or continue with aprosecution when the case has passed both stages of the FullCode Test. The exception is when the Threshold Test may be applied where 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.
3.6The review of cases is a continuing process and prosecutors must take account of any change of circumstances.
1. Is the role of the Crown Prosecution Service explained clearly enough in sections 1, 2 and 3? Please answer at the end of this document.4THE FULL CODE TEST
4.1The Full Code Test has two stages: the evidential stage followed by the public interest stage. Subject to paragraphs 4.16-17 below, the evidential stage must be considered before the public interest stage. If the case does not pass theevidential stage, it must not go ahead no matter how importantor serious it may be.
THE EVIDENTIAL STAGE
4.2Prosecutors must be satisfied that there is enoughevidence to provide a realistic prospect of conviction againsteach defendant on each charge. They must consider what thedefence case may be, and how it is likely to affect theprospects of conviction.
4.3A realistic prospect of conviction is an objective test based solely upon the prosecutor’s assessment of the evidence and any information that they have about the defence that might be put forward by the defendant. It meansthat an objective, impartial andreasonable jury or bench of magistrates or judge hearing a casealone, properly directed and acting in accordance with the law, is morelikely than not to convict the defendant of the charge alleged.This is a separate test from the one that the criminal courtsthemselves must apply. A court should only convict if satisfiedso that it is sure of a defendant’s guilt.
4.4When deciding whether there is enough evidence toprosecute, prosecutors must consider whether theevidence can be used and whether it is reliable. In particular, they will need to consider the following issues.
aIs there any further evidence that could be obtained that would support the integrity of evidence already obtained?
bAre there concerns over the accuracy or credibility of a witness? Is there further evidence which the investigator should be asked to find which may support or undermine the account of the witness?
cIs there evidence which might support or detract from thereliability of a confession? Is the reliability affected byfactors such as the defendant’s age or level ofunderstanding?
dWhat explanation has the defendant given? Is a court likelyto find it credible in the light of the evidence as a whole?Does it support an innocent explanation?
eIs theidentification of the defendant likely to be questioned?Isthe evidence about their identity strong enough?
fDoes the witness have anymotive that may affect their attitude to the case, or arelevant previous conviction?
gIs it likely that the evidence will be excluded because of the way in which it was gathered?
4.5In appropriate cases, prosecutors should consider conducting a pre-trial interview with the witness to help to assess their reliability.
2. Is the evidential stage of the Full Code test explained clearly enough? Please answer at the end of this document.THE PUBLIC INTEREST STAGE
4.6It has never been the rule in England and Wales that suspected criminal offences must automatically be prosecuted. Where there is sufficient evidence, prosecutors must go on to consider whether a prosecution is needed in the public interest.
4.7Aprosecution will usually take place unless the prosecutor is sure that there are publicinterest factors tending against prosecution which outweigh those tending in favour, or it appears moreappropriate in all the circumstances of the case to impose an out-of-court disposal onthe person (see section 7 below). The more serious the offence or the offender’s record of criminal behaviour, the more likely it is that a prosecution will be needed in the public interest.
4.8Deciding on 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. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction.
4.9The absence of a factor does not necessarily mean that it should be taken as a factor tending in the opposite direction. For example, just because the offence was not ‘carried out by a group’ does not transform the ‘factor in favour of a prosecution’ into a ‘factor against prosecution’.
4.10Prosecutors will, in most cases, prosecute where the two stages of the Full Code Test are met without any weight being given to any other factor. However, in certain very limited situations, it is right to take into account whether a prosecution is a proportionate response to the specific offending when deciding the most appropriate course of action. However, this should always be balanced against the seriousness of the offence and the loss or harm sustained in the case.
4.11Some common public interest factors which should be considered when deciding on the most appropriate course of action to take are listed below. The lists are not exhaustive. The factors that apply will depend on the facts in each case.
Some common public interest factors in favour ofprosecution
4.12A prosecution is likely to be needed if:
aa conviction is likely to result in a significant sentence;
ba conviction is likely to result in a confiscation or any otherorder;
ca weapon was used or violence was threatened during thecommission of the offence;
dthe offence was committed against a person serving thepublic (for example, a police or prison officer, or a nurse);
ethe offence was premeditated;
fthe offence was carried out by agroup;
gthe offence was committed in the presence of, or in close proximity to, a child;
hthe victim of the offence was in a vulnerable situation that had been exploited, had been put inconsiderable fear, or suffered personal attack, damage ordisturbance;
ithere is an element of corruption of the victim in the way the offence was committed;
jthe offence was motivated by any form of discrimination against the victim’s ethnic or national origin, age, disability, gender,religion or belief, political views, sexual orientation, or gender identity or the suspect demonstrated hostilitytowards the victim based on any of those characteristics;
kthere is a marked difference in the agesof the defendant and the victim;
lthere is a marked difference in the level of understanding of the defendant and the victim;
mthe offence, although not serious in itself, is widespread in the area where it was committed;
nacommunity, be that either geographical, or of common characteristics, or of shared interests, has expressed concern about the prevalence of the offence;
oa prosecution would have a significant positive impact on maintaining community confidence;
pthe defendant was in a position of authority or trust;
qthe defendant was a ringleader or an organiser of the offence;
rthe offence has resulted in serious financial loss to an individual, corporate body or society;
sthe defendant’s previous convictions or cautions arerelevant to the present offence;
tthe defendant is alleged to have committed the offencewhile under an order of the court;
uthere are grounds for believing that the offence is likely tobe continued or repeated, for example, by a history ofrecurring conduct.
3. Are the public interest factors that tend in favour of prosecution explained clearly enough?Please answer at the end of this document.Some common public interest factors against prosecution
4.13A prosecution is less likely to be needed if:
athe court is likely to impose a nominal penalty;
bthe defendant:
is already the subject ofa sentence and any further conviction would be unlikelyto result in the imposition of an additional sentence ororder, unless the nature of the particular offence requiresa prosecution or the defendant withdraws consent tohave an offence taken into consideration during sentencing;
has already been given an appropriate out-of-court disposal for the offence which remains in place or which has been satisfactorily discharged;
has already been subject to any appropriate regulatory, punitive or relevant civil penalty proceedings which remain in place or which have been satisfactorily discharged;
cthe offence was committed as a result of a genuinemistake or misunderstanding;
dthe actions of the defendant, although sufficient to come within the definition of the crime, were of minor importance or of little influence in the overall commission of the offence;
ethe defendant could not personally obtain or assist another to obtain any advantage or gain from committing the offence;
fthe actions of the defendant did not influence others to commit an offence or influence their behaviour generally;
gthe loss or harm can be described as minor and was theresult of a single incident, particularly if it was caused bya misjudgement;
hthere has been a long delay between the offence takingplace 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
thecomplexity of the offence has meant that there has been a long investigation.
ia prosecution is likely to have a bad effect on the victim’sphysical or mental health, always bearing in mind theseriousness of the offence and the views of the victim about the effect of a prosecution on their physical or mental health;
jthe defendant has put right the loss or harm that wascaused (but defendantsmust not avoid prosecution ordiversion solely because they pay compensation);
ka prosecution might interfere with the investigation or prosecution of another criminal offence;
la prosecution would undermine a promise made to the defendant [either by the investigator or the prosecutor] that he or she would not be prosecuted, although this does not include any case where the investigator or prosecutor has only informed the defendant that proceedings will not be brought or continued against him;
mdetails may be made public that could harm sources ofinformation, international relations or national security;
nany court proceedings would provide the defendant with a further opportunity to express views which could appear in reports of court proceedings and cause further alarm or distress to recognisable sections of society;
othe 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 a real possibility that it may be repeated. 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.
4. Are the public interest factors that tend against prosecution explained clearly enough? Please answer at the end of this document.The views of the victims or their families
4.14The prosecution service does not act for victims or theirfamilies in the same way as solicitors act for theirclients. However,when considering the public interest, prosecutorsshould take into account the consequences for thevictim of whether to prosecute, and any viewsexpressed by the victim or the victim’s family where the victim has unfortunately died.
4.15Victims must be told about decisionsto drop or alter the charges whichmakea significant difference to the case in which they areinvolved. Prosecutors should followany agreed procedures.
Applying the public interest stage when the evidence gathering is not finalised
4.16In the vast majority of cases, prosecutors should only decide whether to prosecute after the investigation has been completed and all the available evidence collected. However, there will be cases where it is clear, prior to the collection and consideration of all the likely evidence, that the public interest does not require a prosecution. In these rare instances, prosecutors may decide that the case should not proceed further.
4.17Prosecutors 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.If prosecutors do not have sufficient information to take such a decision, the investigationshould proceed and a decision taken later in accordance with the Full Code Test set out earlier in this section.
Cases that require the consent of the Director of Public Prosecutions to prosecute