The law in action: how prosecutors apply centuries of legislation to contemporary crime

Speech by Max Hill KC, Director of Public Prosecutions to the Oxford University Law Faculty, 24 February 2023

Opening

We invited you here today by telling you Mark had harmed Paul and asking you whether he should be prosecuted. Those who can recall the details of the synopsis will remember that it was – by design, I’m afraid – frustratingly thin on specifics regarding exactly what took place between Mark and Paul.

If we have a real Paul here today who feels a real Mark has harmed him, I’m sorry to say I won’t be able to give you a real prosecution decision. And please don’t read anything into the choice of those names – they were picked at random in the early stages of thinking about the content for this lecture.

But I do hope to use this fictional example to help you understand how a prosecutor would make that decision – and why that makes working at the CPS so compelling.

So let’s take a step back.

The law provides a set of rules on those aspects of public and private life which Parliament has decided require limitation or control through sanction of criminal liability.

But everyday life – and by extension behaviour that is potentially criminal – does not abide by an orderly structure.

So we need to translate those rules into practice and explain to the public how the law is applied. And that is where the CPS comes in.

Unique role of the CPS

Of course, the CPS itself was created by legislation in Parliament. While I was reading Jurisprudence here, at St Peter’s, the Prosecution of Offences Act of 1985 established the CPS and clearly defined the role it was to play in the criminal justice system. I’d love to tell you I remember the day well, but when the Act gained Royal Assent in May 1985 I was slightly more focused on acting than my future as an advocate – I was appearing at the Oxford Playhouse in the OUDS Centenary production of Brecht’s The Good Person of Szechwan.

By October 1986, when the CPS was fully operational, I had traded learning lines for the Inns of Court School of Law, having just started my Bar Finals – though at that stage I was planning a career in common law practice at the Bar, not just crime. In fact, for almost a decade I practised family law, personal injury litigation, claims in tort and contract, and civil actions against the police, all alongside a growing practice in criminal law, which ultimately came through as my professional mainstay for the next two decades before I was appointed to my current role.

Since its creation, the Crown Prosecution Service (CPS) has been responsible for prosecuting criminal cases that have been investigated by the police and other investigative organisations in England and Wales. We are independent, and we make our decisions independently of the police and government.

Our duty is to make sure that the right person is prosecuted for the right offence, and to bring offenders to justice wherever possible.

The CPS:

• decides which cases should be prosecuted; 
• determines the appropriate charges in more serious or complex cases, and advises the police during the early stages of investigations; 
• prepares cases and presents them at court; and 
• provides information, assistance and support to victims and prosecution witnesses.

The function of the CPS is not to determine guilt or innocence – but rather to decide whether it is appropriate to present charges for the criminal court to consider.

But that decision to prosecute – or not to prosecute – can still have a profound impact on a suspect, victim, witness and the wider public. In establishing the CPS, the 1985 Act ensured that this important decision would be made independently and consistently, by lawyers within a single prosecuting authority across England and Wales.

Code test

The Act also stated that the head of the CPS, the Director of Public Prosecutions – currently me – should issue a Code for Crown Prosecutors. This is the published statement which explains how the CPS decides whether we will prosecute or not, with all of the consequences that follow. In other words, why a person should or should not face the possibility of criminal conviction and punishment.

In doing so, the Code reflects well-established principles of evidential sufficiency and public interest. They can be expressed simply.

First, a prosecution should only follow when there is sufficient evidence, viewed objectively, to justify it. We do not apply the same test as the court, which must convict only if it is sure – or, satisfied beyond reasonable doubt – of the defendant’s guilt. Instead, we must be satisfied only that a conviction is more likely than not given the evidence available.

Second, it has never been the rule that a prosecution will always follow when there is sufficient evidence, and regard must be had to the public interest in prosecuting. These principles pre-date the CPS and, although they have evolved, they have remained consistent at their core. The Code sets out how to approach the question “is a prosecution required in the public interest?” in terms of the common considerations which apply: for instance, how serious is the offence? What is the impact on the victim?

Guidance

So the Code takes us a step forward from the rules and principles of legislation towards the practical realities of the crimes we deal with every day. But it might still leave us with a gap. We might still not know whether the harm Mark has caused Paul should be charged as battery or actual bodily harm. Or is there the evidence to suggest he should be charged with a different, perhaps newer offence? And we might not know whether it would be in the public interest to prosecute.

And so the CPS also issues prosecution guidance, to explain how the Code is applied in particular instances. If you like, the Code addresses the “general” approach; where necessary, prosecution guidance will provide additional information to address the “specific” approach. It can cover both the evidential and the public interest stages of the Code test.

There are more than 300 pieces of prosecution guidance – but let’s focus on some of those that might affect Mark, and start with those where the guidance helps us particularly to determine the evidential test – is there a realistic prospect of conviction for a particular offence?

Evidential

Assault

When you heard ‘Mark harmed Paul’ your mind may have brought up an image of a physical assault – perhaps a punch, a shove or a more prolonged beating – so let’s start there.

To do so we need to go back 162 years to the Offences Against the Person Act of 1861. And one of the most common decisions our prosecutors must make is which of the offences contained in that Act – and several before and since – we charge in a particular case.

To take one example:

• Battery is committed by the intentional or reckless application of unlawful force to another person, and carries a maximum penalty of 6 months’ imprisonment, while
• Actual Bodily Harm is committed when a person intentionally or recklessly assaults another, thereby causing Actual Bodily Harm, and carries a maximum penalty of 5 years’ imprisonment.

Case law then tells us that ABH must involve “more than transient or trifling harm”.

That still leaves us trying to match the circumstances of an individual case against these broad descriptions. And so the CPS provides more practical guidance.

I should be clear – these distinctions are not part of the law, but supplementary to it – they are guidance for our prosecutors as they apply the law.

We tell them that in most cases it should be possible to determine the charge – between ABH or battery – by concluding that the injuries caused are serious or less serious.

“Serious injuries,” we set out, “include damaged teeth or bones, extensive and severe bruising, cuts requiring suturing and those that result in loss of consciousness”.

Less serious injuries include grazes; scratches; abrasions; minor bruising; swellings; reddening of the skin and superficial cuts.

This guidance can't provide for all eventualities. But one of its purposes – reflecting one of the reasons the CPS was created – is that damaged teeth are prosecuted at the same level wherever in England or Wales they are damaged.

 We also guide our prosecutors that certain aggravating factors might make ABH the most appropriate charge. These include where:

• the victim is vulnerable or intimidated, or
• the circumstances in which the assault took place are more serious – such as repeated threats or assaults on the same complainant.

Course of behaviour

And this underscores an important point about harm – that offending can be ongoing rather than a single incident. This might be particularly relevant in cases of domestic abuse.

And in some cases, the harm caused may not be physical.

For example, controlling or coercive behaviour in an intimate or family relationship is an offence under the Serious Crime Act of 2015. This recognises the harm – what the legislation calls “serious effect” – on a victim. “Serious effect” means the victim was in fear of violence on at least two occasions or was caused serious alarm or distress having a substantial adverse effect on their usual day-to-day activities.

Our guidance here helps prosecutors by listing examples of behaviour that might amount to coercive or controlling behaviour – isolating a person from their friends and family, monitoring their time or controlling who they see, where they go and what they wear.

We also list the types of evidence that could be used to prove the offence, to help build strong cases – from text messages to bank records – including substantial adverse effect on day-to-day activities.

So if Mark was in an abusive personal relationship with Paul, where Mark controlled Paul’s finances and who he could see, he could be charged with coercive or controlling behaviour.

Imagine that Paul is able to break out of the relationship, but Mark’s controlling behaviour continues towards him.

This conduct could not currently be prosecuted as controlling or coercive behaviour, because they are no longer in a relationship and do not live together. The Domestic Abuse Act 2021 will close that gap – allowing the offence to be prosecuted in these circumstances from later this year.

But that still leaves the question of how best to prosecute the behaviour after the relationship has ended? What if Mark starts following Paul, tracking his movements, turning up unannounced at his work and home? Here, controlling or coercive behaviour could be charged under the amended legislation, but the behaviour overlaps with stalking. So we are developing guidance to address the choice of charges prosecutors will have for this type of domestic abuse, to best present the case and ensure the court can pass a sentence and make protective orders appropriate to the facts.

I should add here that we recognise that domestic abuse is primarily – but not exclusively – committed by men against women and girls within the context of power and control. Do not read anything into the fact that our short hypothetical case involves two males.

Other ‘assault’ offences

Returning to instances of physical assault – there may be cases where there is sufficient evidence to prosecute for more than one charge. So how should the prosecutor select the appropriate charge or charges?
The Code for Crown Prosecutors provides the overarching framework when prosecutors have to select from a range of charges. The principles it sets out include:

• charges should reflect the seriousness and extent of the offending, 
• the court should have adequate powers to sentence and impose orders, and
• the case should be able to be presented in a clear and simple way.

Sometimes, however, it is important to have guidance on specific areas where this issue arises.

Say Mark puts his hands round Paul’s neck, applying pressure. Under the legislation we’ve already discussed he may have committed a battery, or perhaps – say, if Paul lost consciousness – an assault occasioning actual bodily harm.

But the Domestic Abuse Act 2021 has now provided for a specific offence of non-fatal strangulation – recognising how dangerous it is, and how it represents an extreme form of violence – in domestic and other settings. The maximum sentence is 5 years’ imprisonment.

And so we updated our guidance to make clear: these incidents should all now be charged as the new offence. While victims may often be left with little or no physical marks, the guidance is clear this does not detract from the seriousness of these offences.

In respect of battery, a greater penalty is now available. The reasons which led to the new offence suggest the court should have a greater sentencing range available. In respect of ABH, the penalty is the same. However, for reasons of “plain labelling”, ensuring offending is accurately recorded on an offender’s record and because it is arguably also a more dangerous and extreme form of ABH, the new offence should be charged.

STIs

Of course, some of the most serious harm a person can cause another is through sexual offending. I do not intend to cover that today – the details of our guidance cannot be compressed into a brief example.

But I will touch on one related area – that of the intentional or reckless sexual transmission of infection.

Because this is an example of where our guidance can explain evidential complexities which may not be immediately apparent and guide prosecutors through how to navigate them.

So Mark may have harmed Paul by transmitting a sexual infection to him. Mark knew he had an STI but nonetheless went on to have unprotected sex with Paul, who now also has the STI. Mark is profoundly sorry for having been “thoughtless”. That might seem like sufficient evidence to prosecute. And Mark might well plead guilty if charged. But what would a prosecutor need to think about, to avoid a possible miscarriage of justice?

Our guidance highlights the following considerations:

• Is the STI of the same strain? If it isn’t, Mark could not possibly have transmitted the STI to Paul. Mark knows he has the STI but not this medical detail.
• What other potential sources of infection were there, and can they be ruled out? When was Paul’s last negative STI result? 
• Did Paul consent to sexual activity with a risk of infection? Informed consent could take many forms, and it would amount to a defence to reckless transmission.
• Was Mark reckless? That can be very different to having been thoughtless.

Public interest

So we have covered several examples of how our guidance can support the evidential test, but where it is often most important is in setting out the principles which govern what could otherwise be an amorphous concept – the public interest element of the Code test.

This aspect of the Code is perhaps most often misunderstood.

The public interest does not mean those things or cases in which the public are interested. Nor is it, necessarily, the public’s view or opinion on whether a prosecution should progress. It is not an open-ended exercise of discretion. Instead, it is a reasoned assessment, based on a set of clearly defined questions, on whether a case should proceed.

And that is why we have such clear guidance – within the Code for Crown Prosecutors and also in specific legal guidance – on how it is to be determined. The law may be very clear, there may be compelling evidence the crime has been committed. But that does not always mean it will be right to apply it by prosecuting a particular case.

For example:

• The Road Traffic Act 1988 says that anyone who drives “without due care and attention (…) is guilty of an offence.” But what if it’s an emergency and my actions saved someone and harmed no one – should I be prosecuted?  
• The Theft Act 1968 says it is an offence to dishonestly appropriate property belonging to another with the intention of permanently depriving the other of it. But what if I am 11 years old and have stolen a chocolate bar for the first time – should I be prosecuted?
• The Communications Act 2003 criminalises sending a grossly offensive message over the internet. This could happen in a range of scenarios – from the deliberate, the malicious and the persistent – to the ill-thought-out message which the internet environment means it is easy to send. What if I am immature and did not fully appreciate what I wrote; was immediately remorseful; and took steps to remove the message – should I be prosecuted?

The Code provides our starting point for these decisions but in some cases there are very specific and important situations where a more detailed framework is needed.

And these can be some of the most sensitive cases we deal with.

Assisted suicide

In the example I will give now – the offence of encouraging or assisting suicide – the cases are so sensitive that decisions to prosecute or not must come to me personally for consideration before they are finalised.

So, Mark may have done an act capable of encouraging or assisting Paul’s suicide or attempted suicide – that might be helping him travel abroad to end his life, or perhaps providing him with a poison or a book about poisons.

If the prosecution has sufficient evidence to prove that Mark did such an act, and that act was intended to encourage or assist suicide or an attempt at suicide, prosecutors will still need to go on to consider whether a prosecution is required in the public interest.

The prosecution guidance provides a framework for that decision. It comprises factors tending in favour of prosecution and against, and further guidance about how to apply them. For instance, this is a question of the overall assessment of the public interest, not a question of adding up factors for and against prosecution.

The factors tending towards a prosecution include:

• the victim was under 18 or lacked mental capacity 
• the victim had not reached a voluntary, clear, settled and informed decision to commit suicide
• pressure, violence or abuse from suspect to victim
• the suspect had a position of responsibility or care for the victim.

However, a prosecution is less likely to be required if:

• the victim had reached a voluntary, clear, settled and informed decision to commit suicide
• the suspect was wholly motivated by compassion
• the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance
• the actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide
• the suspect reported the victim's suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.

Given the complexity and sensitivity of these cases, they are managed by specialist prosecutors in our Special Crime Division and – as I said earlier – are then considered by me.

In my time as DPP we have:

• Made decisions on whether to prosecute – based on our Code for Crown prosecutors – in 25 of these cases. 
• Of those, we prosecuted 1 (and the individual was convicted), and we did not prosecute in 23. One case was referred on for consideration of other serious charges.
• Of the 23 where we did not prosecute – in 12 cases this was because we determined it was not in the public interest.

In each case we looked at the individual facts and circumstance of the case, and in each case turned our minds to the same common questions set out in our guidance to ensure we made consistent and fair decisions.

Transparency, consistency and fairness

So I hope it is clear that our guidance plays an important role in our decision making. And that means it is vital that we are open and transparent with it. We set it out publicly for scrutiny and accountability.

All our guidance is published on our website. And in the past 12 months, our prosecution guidance pages have been viewed more than six million times. Prosecution guidance on offences against the person was our most popular page – with more than a quarter of a million views. This relates closely to our casework as these are the second most common type of cases we deal with (behind motoring offences).

In addition to publishing our final guidance we also often consult on draft guidance. By seeking views from experts and interested members of the public we can make sure we are applying the law in a way which reflects the realities and nuances of public experience.

Providing a common framework for decision-making also promotes consistency: a prosecutor in Truro applies the same guidance as a prosecutor in Tynemouth, in Ynys Môn as in Yarmouth.

Those two elements – transparency and consistency – contribute to the guidance ensuring fairness in decision-making. It allows for a structured and objective approach to be taken, for instance, to ensure there is room for compassion in deciding whether to prosecute, but that compassion is not the individual “feeling” of a prosecutor but rather a public interest decision for which there is an explanatory framework.

Fairness does not mean everyone will agree with the decision the CPS makes. It is not possible for that to happen on issues which polarise opinion and it will not always be appropriate or right for us to change our approach in response to feedback. Our casework decisions are made by experts applying the law, and our guidance must reflect the law. Sometimes our decisions, or our guidance, will be unpopular; that does not mean we should change them.

But it should be clear how the decision has been taken. It should be taken consistently across the whole of the CPS. And it should be a decision which has taken a reasoned and balanced approach to difficult questions.

Working at the CPS

These values I have just been discussing in relation to our legal guidance – transparency, fairness – are central to everything we do at the CPS.

Ours is a unique role, and a unique responsibility. It is not one we undertake lightly. Every day we make decisions with the potential to change lives irrevocably – for victims, for witnesses, for defendants and for our entire community. And we are accountable for those decisions.

I am fortunate to lead an organisation of extremely talented, passionate people – some of the very best in the criminal justice system. Our people – whether they are making difficult charging decisions, combing through evidence to build a strong case, or delivering first-class advocacy in a packed courtroom – work hard day in and day out to deliver justice for victims and witnesses, and make sure that defendants are treated fairly.

Our work is not the theoretical, academic study of law, though that has a valuable place of course. Our work is the real-life application of law to evidence; of principle to facts. This can be unrelenting – but it is also hugely rewarding.

For our part, as an organisation we hone and nurture our people to be the best there is. Appointment to, and progression within, the CPS is based on merit, competence, and ability. Our values of fairness, openness, respect, and professionalism ensure that talent is recognised and rewarded.

I have spoken about the challenging decisions we make every day – and it is only fair to ask our people to make those decisions if we provide the tools and the support they need to do so safely. Our work can be difficult, and it can be distressing. So we offer comprehensive training, and an excellent employee wellbeing package – including specialist training and additional support for those prosecutors who handle our most distressing cases, for example those working on rape and serious sexual assault.

We also aim to be fair in how we ask our colleagues to work – recognising that different people have different needs. This includes, where possible, flexibility of working hours, flexibility to support caring responsibilities, and a flexible approach to deployment.

This culture of inclusion is underpinned by our staff networks – groups of colleagues and allies who come together to support each other and advise leadership on how we can continue working to make the CPS as inclusive as possible. Our networks cover disability, faith and belief, LGBTQI+, race, carers and social mobility, and I am very grateful for their contributions.

Closing

I said earlier that I didn’t consider a career at the newly-formed CPS when I was training as a barrister – and I enjoyed my three decades at the self-employed Bar immensely. But if I was starting out now, and with what I now know of the CPS and its unique role, I would find it hard to resist.

As I hope I have explained, we don’t make new law – that is for Parliament. But we do put the law into effect. We translate legal rules and principles into everyday life – working out what they mean in practice for those people brought into the criminal justice system for diverse and complex reasons. That is a vital role, and one which we are proud to have on behalf of the public we serve.

Thank you.