Reconsidering a Prosecution Decision

• Introduction
• Legal basis for reinstitution of proceedings
• Proceedings that cannot be reinstituted
• Principles
• Written Ministerial Statement
• Level of Decision Making
• Examples of discontinued cases that are reinstituted
• Nature of the review
• Wrong decision cases
  • 1. Was the decision not to prosecute wrong?
  • 2. Should a prosecution now be brought in order to maintain confidence in the criminal justice system?
• Abuse of Process
• Annex: Attorney General Written Ministerial Statement, House of Commons, 25 February 2021

Introduction 

This guidance explains when prosecutors may institute or reinstitute criminal proceedings after the CPS has told a suspect or defendant that there will not be a prosecution, or that the prosecution has been stopped.

Legal basis for reinstitution of proceedings 

Section 23(3) Prosecution of Offences Act 1985 (POA) provides that the DPP may discontinue proceedings in magistrates’ courts before the start of a trial or the sending of the accused to the Crown Court, subject only to the accused’s right to revive the proceedings, under s23(7). Section 23(9) gives the DPP an unqualified right to reinstitute proceedings in respect of the same offence.

Similarly, s23A(2) POA allows the DPP to discontinue proceedings in the Crown Court at any time before the indictment is preferred (see the section on Preferment and Service in the CPS guidance on Drafting the Indictment for when an indictment is preferred). However, there is no provision for the accused to revive the proceedings. Section 23A(5) allows the DPP to reinstitute proceedings in respect of the same offence.

The DPP powers referred to above may be exercised by Crown Prosecutors, pursuant to s1(6) of the POA.

For further detail on terminating proceedings, including notice of discontinuance, see CPS Guidance on Termination of Proceedings. Note that a suspect / defendant, and the court where appropriate, must be informed of:

• The reason why a case is not to be prosecuted or is to be stopped;
• Any right of the suspect to issue a revival notice; and
• The possibility that the case may be prosecuted in future.

Proceedings that cannot be reinstituted

Proceedings may not be reinstituted as a matter of law in the following circumstances:

1. The defendant has been acquitted, unless the case meets the “double jeopardy” criteria in Part 10 of the Criminal Justice Act 1988.
2. The offence is summary only and the statutory time limit, usually 6 months, has expired.
3. The case has been dismissed, unless a voluntary bill of indictment is preferred.
4. The prosecution previously terminated proceedings by offering no evidence.

Note that in 2 and 4 above, although the proceedings cannot be reinstituted, decisions not to prosecute may be reviewed and found to be wrong under the Victims’ Right to Review (VRR) scheme: see Victims Right to Review - CPS Policy and Guidance.

​Principles

​Victims of crime and the public have a legitimate expectation that those who commit offences will be brought to justice. This expectation and the rights of victims cannot be overridden by a suspect’s belief that they will not be prosecuted, including where the suspect has been told that there will not be a prosecution or where a prosecution has been stopped. These rights and expectations need to be balanced so that they are fair to all parties. Accordingly, in appropriate circumstances the CPS may:

• Overturn a decision not to prosecute or to deal with the case by way of an out-of-court disposal; or
• Restart a prosecution. 

Victims have a right to seek a review of a decision not to prosecute, without having to seek recourse to​ judicial review proceedings in the first instance. The Victims Right to Review (VRR) scheme enables victims to seek a review of certain CPS decisions not to start a prosecution or to stop a prosecution. Further details on this scheme are contained in Victims Right to Review - CPS Policy and Guidance.​

The statutory right of the prosecution to institute / discontinue / re-institute proceedings is qualified by two important protections for the suspect / defendant, to ensure that there is no injustice done:

• The right of the defendant to revive proceedings in the magistrates’ court (see above); and
• The court’s power to stay any proceedings that it views as an abuse of the court’s process (see below).

​Written Ministerial Statement

The Attorney General made a Written Ministerial Statement (WMS) on 25 February 2021, to coincide with the publication of the revised CPS guidance: see annex. The WMS states that victims of crime and the public have a legitimate expectation that those who commit offences will be brought to justice. It also sets out the protections for the suspect, to ensure that there is no injustice done (see above).

Level of Decision Making

All decisions to reinstitute proceedings, or to commence proceedings where the CPS has previously told a suspect that there will not be a prosecution, should be approved at the level of Deputy Chief Crown Prosecutor (including those acting as a DCCP) or above.

Examples of discontinued cases that are reinstituted

The list of examples below is non-exhaustive and is provided simply to illustrate the types of situations where cases are discontinued and later reinstated. Cases may be reinstated in other situations.

Section 10 of The Code for Crown Prosecutors​ provides the following examples where cases are discontinued / reinstituted.

1. Cases where a further review of the original decision shows that it was wrong and, in order to maintain confidence in the criminal justice system, a prosecution should be brought despite the earlier decision;
2. Cases which are stopped so that further anticipated evidence, which is likely to become available in the fairly near future, can be collected and prepared. In these cases, the prosecutor will tell the defendant that the prosecution may well start again;
3. Cases which are not prosecuted or are stopped because of a lack of evidence but where more significant evidence is discovered later; and
4. Cases involving a death in which a review following the findings of an inquest concludes that a prosecution should be brought, notwithstanding any earlier decision not to prosecute. (For guidance on case reviews following an inquest see CPS guidance on Coroners.)

Other examples of situations in which cases are discontinued / reinstituted are:

1. Cases which are not prosecuted or are stopped because the prosecutor is not satisfied that the Full Code Test can be applied, due to outstanding inquiries or outstanding information or material (whether evidential or disclosure) that has been requested by the prosecutor. These cases may be reinstituted following completion of the inquires or receipt of the information / material.

This example covers paragraphs 3.3, 4.3.b and 4.8 of The Code, where the prosecutor decides that the Full Code Test cannot be applied pending outstanding inquiries or receipt of requested information / material from the investigator. It covers a wider range of circumstances than the examples given in section 10 of The Code, at 2 and 3 above.

1. ​​​Where the decision is taken to reinstitute a case where the police failed to send a file (digital or otherwise) in time for the first hearing at the magistrates' court and the court refuses to allow an adjournment resulting in the proceedings being withdrawn.
2. Where the original proceedings were terminated after the decision was taken to withdraw sending proceedings because the court had refused an adjournment.
3. Where charges are dismissed by a judge following an application to dismiss the prosecution case prior to arraignment. Note that proceedings can only be brought on dismissed charges by way of preferment of a Voluntary Bill of Indictment: see CPS guidance on Indictable only cases: Sending to the Crown Court​.

In all circumstances where a case is stopped or not started due to a lack of evidence or material (including where further anticipated evidence is likely to become available in the fairly near future), the case may be reinstated even though the evidence or material that is subsequently received may have been in the knowledge or possession of the police at the time that the case was stopped / not started.

​Nature of the review

When reviewing a case where a suspect or defendant was previously told that there will not be a prosecution, or where the prosecution was stopped, the review should determine:

• Whether the case meets the Full Code Test; and
• Whether it is highly likely that a court will rule that a prosecution is an abuse of its process: see the section below on Abuse of Process.

If the Full Code Test is met and it is not highly likely that a court will rule that a prosecution is an abuse of its process, the case should be reinstituted.

​Wrong decision cases

In cases where the review is on the basis that the original decision may have been wrong, including reviews under the VRR scheme, additional considerations apply.

In accordance with Section 10.2 of the Code, the review is twofold:

1. Was the decision not to prosecute wrong?
2. If so, should a prosecution now be brought in order to maintain confidence in the criminal justice system?

​1. Was the decision not to prosecute wrong?

A review of the case will be conducted independent of those who made the original decision. The review will determine whether the case meets the Full Code Test.

Having reached a decision that a case passes the Full Code Test, the reviewer will go on to consider the original review and to identify the basis upon which it could be described as ‘wrong’.

The issue on review is not whether the decision not to prosecute was unreasonable, but whether it was wrong.

It is expected that in the majority of cases where the reviewer decides that the Full Code Test is met, the reviewer will conclude that the original decision was wrong. However, this will not always be the case, as a decision is not necessarily wrong simply because the reviewer disagrees with it. The reviewer should allow a margin of individual prosecutorial discretion when determining whether a decision was wrong, as it is understandable that two prosecutors might differ, particularly when making difficult decisions on complex evidence or on the public interest. Accordingly, there will be some cases where the reviewer concludes that, although they disagree with the original decision, it is not wrong. It is expected that in such cases the original review will have been conducted thoroughly, the prosecutor will have considered all relevant issues and come to a well-reasoned and justifiable decision.

When considering the basis upon which the original decision could be described as ‘wrong’, the reviewer should determine whether any of the following non-exhaustive list of factors had a significant impact on the decision (either on its own or in combination with other factors):

• A misinterpretation of the evidence.
  For example: 
  • A failure to take into account relevant evidence, or an erroneous decision to take into account irrelevant evidence. 
  • Disproportionate weight attributed to factors such as: victim or witness credibility; initial reluctance of the victim to report the allegation; potential defences not actually raised by the suspect; or the inability of the prosecution to completely rebut the account of the suspect. 
• An incorrect application of the law.  
• An incorrect application of the public interest stage.
  For example: disproportionate weight attributed to one or more public interest factors tending against prosecution; or insufficient weight attributed to one or more public interest factors tending in favour of prosecution.

• A failure to consider, or a decision to not follow, relevant CPS policy that cannot be properly justified.
  Note that:
  • CPS policy may be set out in The Code, Director’s Guidance, Legal Guidance or Guidelines. A failure to properly apply or comply with policy includes situations where irrelevant considerations have been taken into account. 
  • It remains open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance: R v A (RJ) [2012] EWCA Crim 434​ [84]. 

2. Should a prosecution now be brought in order to maintain confidence in the criminal justice system? 

If it is determined that the case meets the Full Code Test and the original decision not to prosecute was wrong, prosecutors must then consider whether a prosecution should be brought in order to maintain public confidence. 

Prosecutors should consider whether it is highly likely that a court will rule that a prosecution is an abuse of its process: see the section below on Abuse of Process. 

If it is not highly likely that a court will rule that a prosecution is an abuse of its process, a prosecution should be brought, in order to maintain confidence in the criminal justice system.

Abuse of Process

In accordance with The Code [3.5] and Guest v DPP [2009] EWHC 594 (Admin)​ [58], prosecutors should not start or continue a prosecution where their view is that it is highly likely that a court will rule that a prosecution is an abuse of its process, and stay the proceedings. The court in Guest suggested that it will be only in the most exceptional case that a prosecutor will validly come to this view. 

In the context of reconsidering a prosecution decision, and breach of an undertaking not to prosecute, R v Abu Hamza [2006] EWCA Crim 291​8 [50-54] is the leading case. The court reviewed the authorities and concluded that the proposed prosecution must be an affront to justice in order for it to amount to an abuse of process, and this will be rare. It is not likely to constitute an abuse of process to proceed with a prosecution unless:

• There has been an unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted; and 
• The defendant has acted on that representation to his detriment. 
• Even then, if facts come to light which were not known when the representation was made, these may justify proceeding with the prosecution despite the representation.

In R v Cole [2019] EWCA Crim 1033 the Crown had discontinued proceedings following a failed application for an adjournment for a witness to attend from overseas. A VRR Review concluded that the decision was wrong, as a hearsay application should have been made to read the witness’ evidence, and the proceedings were subsequently reinstated. The court held that the decision to discontinue the case was not made in bad faith, and the subsequent reinstitution of proceedings did not constitute executive misconduct and was not an abuse of process. 

For more detail on abuse of process see CPS guidance on Abuse of Process. 

Annex: Attorney General Written Ministerial Statement, House of Commons, 25 February 2021 

Publication of the revised CPS guidance on reconsidering a prosecution decision

Statement

The Crown Prosecution Service (CPS) has today published revised guidance to prosecutors on when they may institute or reinstitute criminal proceedings after a decision not to prosecute or to terminate proceedings has been communicated to a suspect or defendant.

The guidance sets out the framework for when this is possible as a matter of law and the governing principles that apply to the CPS decision. Victims of crime and the public have a legitimate expectation that those who commit offences will be brought to justice. Where it is legally possible to do so, and the evidential and public interest test provided for in the Code for Crown Prosecutors is met, there are two important protections for the suspect, to ensure that there is no injustice done. Firstly, the right of a defendant to revive proceedings in the magistrates’ court (under section 23(7) Prosecution of Offences Act 1985). Secondly, the court’s power to stay any proceedings which amount to an abuse of the court’s process.

The guidance also provides a non-exhaustive list of eight examples to illustrate the types of situations where cases are discontinued and later reinstated. They include where a further review shows that the original decision was wrong, when further evidence is anticipated in the near future, where significant evidence is later discovered, when a case is reviewed further in light of the findings of an inquest and where there are outstanding lines of enquiry to be completed or relevant material to be obtained. The guidance clarifies the procedure to be adopted and establishes the level of seniority at which any decision must be made. The fundamental evidential and public interest considerations have not changed.

A copy of the revised guidance has been placed in both the Library of the House of Commons and the Library of the House of Lords.