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Law - CPS
Code for Crown Prosecutors
The Crown Prosecution Service is a public
service for England and Wales headed by the Director of Public
Prosecutions. It is answerable to Parliament through the Attorney
General.
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 instituted
by the police. The police are responsible for the investigation
of crime. Although the Crown Prosecution Service works closely
with the police, it is independent of them.
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 fourth edition of the Code and replaces all earlier
versions. For the purposes 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 2000
Applications for reproduction of this Code should be made
to the Crown Prosecution Service.
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 take account of the Code when they are 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
fairly and to prosecute fairly but effectively.
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.
2.2 Crown Prosecutors must be fair, independent and objective.
They must not let any personal views about ethnic or national
origin, 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 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.
2.5 The CPS 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.
3.1 Proceedings are usually started by
the police. Sometimes they may consult the Crown Prosecution
Service before starting a prosecution. Each case that the
Crown Prosecution Service receives from the police is reviewed
to make sure it meets the evidential and public interest tests
set out in this Code. Crown Prosecutors may decide to continue
with the original charges, to change the charges, or sometimes
to stop the case.
3.2 Review is a continuing process and Crown Prosecutors must
take account of any change in circumstances. Wherever possible,
they talk to the police first if they are thinking about changing
the charges or stopping the case. This gives the police the
chance to provide more information that may affect the decision.
The Crown Prosecution Service and the police work closely
together to reach the right decision, but the final responsibility
for the decision rests with the Crown Prosecution Service.
4.1 There are two stages in the decision
to prosecute. The first stage is the evidential test. If the
case does not pass the evidential test, it must not go ahead,
no matter how important or serious it may be. If the case
does meet the evidential test, Crown Prosecutors must decide
if a prosecution is needed in the public interest.
4.2 This second stage is the public interest test. The Crown
Prosecution Service will only start or continue with a prosecution
when the case has passed both tests. The evidential test is
explained in section 5 and the public interest test is explained
in section 6.
5.1 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.
5.2 A realistic prospect of conviction is an objective test.
It means that a jury or bench of magistrates, 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 jury or magistrates’ court should only convict if
satisfied so that it is sure of a defendant’s guilt.
5.3 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 may not be as strong as
it first appears. Crown Prosecutors must ask themselves the
following questions:
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 or
because of the rule against using hearsay as evidence? 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
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?
5.4 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.
6.1 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.)
6.2 The public interest must be considered in each case where
there is enough evidence to provide a realistic prospect of
conviction. A prosecution will usually take place unless there
are public interest factors tending against prosecution which
clearly outweigh those tending in favour. 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.
6.3 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.
6.4 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 weapon was used or violence was threatened during the
commission of the offence;
c the offence was committed against a person serving the public
(for example, a police or prison officer, or a nurse);
d the defendant was in a position of authority or trust;
e the evidence shows that the defendant was a ringleader or
an organiser of the offence;
f there is evidence that the offence was premeditated;
g there is evidence that the offence was carried out by a
group;
h the victim of the offence was vulnerable, has been put in
considerable fear, or suffered personal attack, damage or
disturbance;
i the offence was motivated by any form of discrimination
against the victim’s ethnic or national origin, sex,
religious beliefs, political views or sexual orientation,
or the suspect demonstrated hostility towards the victim based
on any of those characteristics;
j 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;
k the defendant’s previous convictions or cautions are
relevant to the present offence;
l the defendant is alleged to have committed the offence whilst
under an order of the court;
m there are grounds for believing that the offence is likely
to be continued or repeated, for example, by a history of
recurring conduct; or
n the offence, although not serious in itself, is widespread
in the area where it was committed.
6.5 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;
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
• 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 a 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 solely because
they pay compensation); or
I details may be made public that could harm sources of information,
international relations or national security;
6.6 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.
6.7 The Crown Prosecution Service prosecutes
cases on behalf of the public at large and not just in the
interests of any particular individual. However, when considering
the public interest test Crown Prosecutors should always take
into account the consequences for the victim of the decision
whether or not to prosecute, and any views expressed by the
victim or the victim’s family.
6.8 It is important that a victim is told about a decision
which makes a significant difference to the case in which
he or she is involved. Crown Prosecutors should ensure that
they follow any agreed procedures.
6.9 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.
6.10 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.
Reprimands and final warnings are intended to prevent re-offending
and the fact 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.
6.11 These are only for adults. The police
make the decision to caution an offender in accordance with
Home Office guidelines.
6.12 When deciding whether a case should be prosecuted in
the courts, Crown Prosecutors should consider the alternatives
to prosecution. This will include a police caution. Again
the Home Office guidelines should be applied. Where it is
felt that a caution is appropriate, Crown Prosecutors must
inform the police so that they can caution the suspect. If
the caution is not administered because the suspect refuses
to accept it or the police do not wish to offer it, then the
Crown Prosecutor may review the case again.
7.1 Crown Prosecutors should select charges
which:
a reflect the seriousness of the offending;
b give the court adequate sentencing powers; and
c enable the case to be presented in a clear and simple way.
This means that Crown Prosecutors may not always continue
with the most serious charge where there is a choice. Further,
Crown Prosecutors should not continue with more charges than
are necessary.
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.
8.1 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. (See the ‘National Mode of Trial Guidelines’
issued by the Lord Chief Justice.) Crown Prosecutors should
recommend Crown Court trial when they are satisfied that the
guidelines require them to do so.
8.2 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.
9.1 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.
9.2 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.
9.3 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.
10.1 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.
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.
Further copies may be obtained from:
Crown Prosecution Service
Communications Branch
50 Ludgate Hill
London
EC4M 7EX
Telephone: 020 7796 8442
Fax: 020 7796 8351
Email: commsdept@cps.gov.uk
Translations into other languages are
available and audio or braille copies are available. Please
contact CPS Communications Branch (above) for details.
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