The Code for Crown Prosecutors 2018 - for consultation

• Please note: this is a consultation document. Prosecutors should apply the current Code 2013, seventh edition
• To respond to this consultation, please see the main consultation page

Introduction

1.1  The Code for Crown Prosecutors (the Code) is issued by the Director of Public Prosecutions (DPP) under section 10 of the Prosecution of Offences Act 1985. This is the eighth edition of the Code and replaces all earlier versions.

1.2  The DPP is the head of the Crown Prosecution Service (CPS), which is the principal public prosecution service for England and Wales. The DPP operates independently, under the superintendence of the Attorney General who is accountable to Parliament for the work of the CPS.

1.3  The Code gives guidance to prosecutors on the general principles to be applied when making decisions about prosecutions. The Code is issued primarily for prosecutors in the CPS but other prosecutors follow the Code, either through convention or because they are required to do so by law.

1.4  In this Code:
a)  “Suspect” is used to describe a person who is under consideration as the subject of formal criminal proceedings;
b)  “Defendant” is used to describe a person who has been charged or summonsed;
c)  “Offender” is used to describe a person who has admitted guilt as to the commission of an offence, or who has been found guilty in a court of law.

General Principles

2.1  The independence of the prosecutor is central to the criminal justice system of a democratic society. Prosecutors are independent from persons or agencies that are not part of the prosecution decision-making process. They are also independent from the police and other investigators. Prosecutors must be free to carry out their professional duties without political interference and must not be affected by improper or undue pressure or influence from any source.

2.2  The decision to prosecute or to recommend an out-of-court disposal is a serious step that affects suspects, victims, witnesses and the public at large and must be undertaken with the utmost care.

2.3  It is the duty of prosecutors to make sure that the right person is prosecuted for the right offence and to bring offenders to justice wherever possible. Casework decisions taken fairly, impartially and with integrity help to secure justice for victims, witnesses, suspects, defendants and the public. Prosecutors must ensure that the law is properly applied, that relevant evidence is put before the court and that obligations of disclosure are complied with.

2.4  Although each case must be considered on its own facts and on its own merits, there are general principles that apply in every case.

2.5  When making decisions, prosecutors must be fair and objective. They must not let any personal views about the ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity of the suspect, defendant, victim or any witness influence their decisions. Neither must they be motivated by political considerations. Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction.

2.6  The CPS is a public authority for the purposes of current, relevant equality legislation. Prosecutors are bound by the duties set out in this legislation.

2.7  Prosecutors must apply the principles of the European Convention on Human Rights, in accordance with the Human Rights Act 1998, at each stage of a case. They must comply with any guidelines issued by the Attorney General and with the policies and guidance of the CPS issued on behalf of the DPP, unless it is determined that there are exceptional circumstances. CPS guidance contains further evidential and public interest factors for specific offences and offenders and is available for the public to view on the CPS website. Prosecutors must also comply with the Criminal Procedure Rules and Criminal Practice Directions, and have regard to the Sentencing Council Guidelines and the obligations arising from international conventions.

2.8  The CPS prosecutes on behalf of some other Government departments. In such cases, prosecutors should have regard to any relevant enforcement policies of those departments.

2.9  Some offences may be prosecuted by either the CPS or by other prosecutors in England and Wales. When making decisions in these cases, prosecutors may, where they think it appropriate, have regard to any relevant prosecution policy or code of the other prosecutor.

2.10  Where the law differs in England and Wales prosecutors must apply the Code and have regard to any relevant policy, guidance or charging standard.

The Decision Whether to Prosecute

3.1  In more serious or complex cases, prosecutors decide whether a person should be charged with a criminal offence and, if so, what that offence should be. Prosecutors may also advise on or authorise out-of-court disposals as an alternative to prosecution. They make their decisions in accordance with this Code, the DPP’s Guidance on Charging and any relevant legal guidance or policy. The police apply the same principles in deciding whether to start criminal proceedings against a person in those cases for which they are responsible.

3.2  The police and other investigators are responsible for conducting enquiries into any alleged crime and for deciding how to deploy their resources. This includes decisions to start or continue an investigation and on the scope of the investigation. Prosecutors should advise the police and other investigators about possible reasonable lines of inquiry, evidential requirements, pre-charge procedures, disclosure management and the overall investigation strategy. This can include decisions to refine or narrow the scope of the criminal conduct and the number of suspects under investigation. Such advice assists the police and other investigators to complete the investigation within a reasonable period of time and to build the most effective prosecution case.

3.3  Prosecutors cannot direct the police or other investigators. However, prosecutors must have regard to the impact of any failure to pursue an advised line of inquiry or to comply with a request for information, when deciding whether the application of the Full Code Test should be deferred or whether the test can be met at all.

3.4  Prosecutors should identify and, where possible, seek to rectify evidential weaknesses, but, subject to the Threshold Test (see section 5), they should quickly stop cases which do not meet the evidential stage of the Full Code Test (see section 4) and which cannot be strengthened by further investigation, or where the public interest clearly does not require a prosecution (see section 4). Although prosecutors primarily consider the evidence and information supplied by the police and other investigators, the suspect or those acting on his or her behalf may also submit evidence or information to the prosecutor, before or after charge, to help inform the prosecutor’s decision.

3.5  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.  

3.6  Prosecutors review every case they receive from the police or other investigators. Review is a continuing process and prosecutors must take account of any change in circumstances that occurs as the case develops, including what becomes known of the defence case, and receipt of any unused material that may undermine the prosecution case or assist the defence case, to the extent that the prosecution should not proceed. Wherever possible, they should consult the investigator when considering changing the charges or stopping the case. Prosecutors and investigators work closely together, but the final responsibility for the decision whether or not a case should go ahead rests with the CPS.

3.7  Parliament has decided that a limited number of offences should only be taken to court with the agreement of the DPP. These are called consent cases. In such cases the DPP, or a prosecutor acting on their behalf, applies the Code in deciding whether to give consent to a prosecution.

3.8  There are also certain offences that can only be taken to court with the consent of the Attorney General. Prosecutors must follow current guidance when referring any such cases to the Attorney General. Some offences require the consent of a Secretary of State before a prosecution is started. Prosecutors must obtain such consent prior to charge and apply any relevant guidance in these cases.  Additionally, the Attorney General will be kept informed of certain cases as part of his or her superintendence of the CPS and accountability to Parliament for its actions.

The Full Code Test

4.1  Prosecutors must only start or continue a prosecution when the case has passed both stages of the Full Code Test. The exception is when the Threshold Test may be applied (see section 5).

4.2  The Full Code Test has two stages: (i) the evidential stage; followed by (ii) the public interest stage.

4.3  In most cases it would not be appropriate to apply the Full Code Test until outstanding reasonable lines of enquiry have been pursued. However, the Full Code Test may be applied prior to the investigation being completed, if the prosecutor is satisfied that any further evidence or material is unlikely to affect the application of the Full Code Test, whether in favour of or against a prosecution.

4.4  In most cases prosecutors should only consider whether a prosecution is in the public interest after considering whether there is sufficient evidence to prosecute. However, there will be cases where it is clear, prior to the reviewing all the evidence, that the public interest does not require a prosecution. In these instances, prosecutors may decide that the case should not proceed further.

4.5  Prosecutors 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 investigation should continue and a decision taken later in accordance with the Full Code Test set out in this section.

The Evidential Stage

4.6  Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge*. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.

* For the purposes of the Code for Crown Prosecutors, “conviction” includes a finding that “the person did the act or made the omission” in circumstances where the person is likely to be found not guilty on the grounds of insanity.

4.7  The finding that there is a realistic prospect of conviction is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which he or she might rely. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.

4.8  When deciding whether there is sufficient evidence to prosecute, prosecutors should ask themselves the following:

Can the evidence be used in court?

Prosecutors should consider whether there is any question over the admissibility of certain evidence. In doing so, prosecutors should assess:

a)    the likelihood of that evidence being held as inadmissible by the court; and
b)    the importance of that evidence in relation to the evidence as a whole.

Is the evidence reliable?

Prosecutors should consider whether there are any reasons to question the reliability of the evidence, including its accuracy or integrity.

Is the evidence credible?

Prosecutors should consider whether there are any reasons to doubt the credibility of the evidence.

Is there any other material that might affect the sufficiency of evidence?

Prosecutors must consider at this stage and throughout the case whether there is any material that may affect the assessment of the sufficiency of evidence, including unexamined material in the possession of the police, and material that may be obtained through further enquiries.

QUESTION 1

Do you agree that when deciding whether there is sufficient evidence to prosecute, prosecutors should consider whether there is any other material that may affect the sufficiency of evidence?

The Public Interest Stage

4.9  In every case where there is sufficient evidence to justify a prosecution or to offer an out-of-court disposal, prosecutors must go on to consider whether a prosecution is required in the public interest.

4.10  It has never been the rule that a prosecution will automatically take place once the evidential stage is met. A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour. In some cases the prosecutor may be satisfied that the public interest can be properly served by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal rather than bringing a prosecution.

4.11  When deciding the public interest, prosecutors should consider each of the questions set out below in paragraphs 4.14 a) to g) so as to identify and determine the relevant public interest factors tending for and against prosecution. These factors, together with any public interest factors set out in relevant guidance or policy issued by the DPP, should enable prosecutors to form an overall assessment of the public interest.

4.12  The explanatory text below each question in paragraphs 4.14 a) to g) provides guidance to prosecutors when addressing each particular question and determining whether it identifies public interest factors for or against prosecution. The questions identified are not exhaustive, and not all the questions may be relevant in every case. The weight to be attached to each of the questions, and the factors identified, will also vary according to the facts and merits of each case.

4.13  It is quite possible that one public interest factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and those factors put to the court for consideration when sentence is passed.

4.14 Prosecutors should consider each of the following questions:

a) How serious is the offence committed?

• The more serious the offence, the more likely it is that a prosecution is required.
• The likely sentence in the event of a conviction is an indicator of the seriousness of the offence.

b) What is the level of culpability of the suspect?

• The greater the suspect’s level of culpability, the more likely it is that a prosecution is required.
• Culpability is likely to be determined by:

i. the suspect’s level of involvement;
ii. the extent to which the offending was premeditated and/or planned;
iii. the extent to which the suspect has benefitted from criminal conduct;
iv.  whether the suspect has previous criminal convictions and/or out-of-court disposals and any offending whilst on bail or whilst subject to a court order;
v.  whether the offending was or is likely to be continued, repeated or escalated;
vi. the suspect’s age or maturity (see paragraph d below for suspects under 18).

• A suspect is likely to have a much lower level of culpability if the suspect has been compelled, coerced or exploited, particularly if they are the victim of a crime that is linked to their offending.
• Prosecutors should also have regard to whether the suspect is, or was at the time of the offence, suffering from any significant mental or physical ill health, as in some circumstances this may mean that it is less likely that a prosecution is required. However, prosecutors will also need to consider how serious the offence was, whether the suspect is likely to re-offend and the need to safeguard the public or those providing care to such persons.

c) What are the circumstances of and the harm caused to the victim?

The circumstances of the victim are highly relevant. The more vulnerable the victim’s situation, or the greater the perceived vulnerability of the victim, the more likely it is that a prosecution is required.

This includes where a position of trust or authority exists between the suspect and victim.

• A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public.
• It is more likely that prosecution is required if the offence was motivated by any form of prejudice against the victim’s actual or presumed ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity; or if the suspect targeted or exploited the victim, or demonstrated hostility towards the victim based on any of those characteristics.
• Prosecutors also need to consider if a prosecution is likely to have an adverse effect on the victim’s physical or mental health, always bearing in mind the seriousness of the offence, the availability of special measures and the possibility of a prosecution without the participation of the victim.
• Prosecutors should take into account the views expressed by the victim about the impact that the offence has had. In appropriate cases, this may also include the views of the victim’s family.
• However, the CPS does not act for victims or their families in the same way as solicitors act for their clients, and prosecutors must form an overall view of the public interest.

d) Was the suspect under the age of 18 at the time of the offence?

• The criminal justice system treats children and young people differently from adults and significant weight must be attached to the age of the suspect if they are a child or young person under 18.
• The best interests and welfare of the child or young person must be considered, including whether a prosecution is likely to have an adverse impact on their future prospects that is disproportionate to the seriousness of the offending.
• Prosecutors must have regard to the principal aim of the youth justice system, which is to prevent offending by children and young people. Prosecutors must also have regard to the obligations arising under the United Nations 1989 Convention on the Rights of the Child.
• Prosecutors should consider the suspect’s maturity, as well as their chronological age, as young adults will continue to mature into their mid-twenties.
• As a starting point, the younger the suspect, the less likely it is that a prosecution is required.
• However, there may be circumstances which mean that, notwithstanding the fact that the suspect is under 18 or lacks maturity, a prosecution is in the public interest. These include where:

i.   the offence committed is serious;
ii.  the suspect’s past record suggests that there are no suitable alternatives to prosecution; and
iii. the absence of an admission means that out-of-court disposals that  might have addressed the offending behaviour are not available.

e) What is the impact on the community?

• The greater the impact of the offending on the community, the more likely it is that a prosecution is required.
• The prevalence of an offence in a community may cause particular harm to that community, increasing the seriousness of the offending.
• Community is not restricted to communities defined by location and may relate to a group of people who share certain characteristics, experiences or backgrounds, including an occupational group.
• Evidence of impact on a community may be obtained by way of a Community Impact Statement.

f) Is prosecution a proportionate response?

• In considering whether prosecution is proportionate to the likely outcome, the following may be relevant:

i. The cost to the CPS and the wider criminal justice system, especially where it could be regarded as excessive when weighed against any likely penalty. Prosecutors should not decide the public interest on the basis of this factor alone. It is essential that regard is also given to the public interest factors identified when considering the other questions in paragraphs 4.14 a) to g), but cost can be a relevant factor when making an overall assessment of the public interest.

ii. Cases should be prosecuted in accordance with principles of effective case management. For example, in a case involving multiple suspects, prosecution might be reserved for the main participants in order to avoid excessively long and complex proceedings.

g) Do sources of information require protecting?

• In cases where public interest immunity does not apply, special care should be taken when proceeding with a prosecution where details may need to be made public that could harm sources of information, ongoing investigations, international relations or national security. It is essential that such cases are kept under continuing review.

The Threshold Test

5.1  In limited circumstances, where the Full Code Test is not met, the Threshold Test may be applied to charge a suspect. The seriousness or circumstances of the case must justify the making of an immediate charging decision, and there must be substantial grounds to object to bail.

5.2  There must be a rigorous examination of the conditions of the Threshold Test to ensure that it is only applied when necessary and that cases are not charged prematurely. Where any of the conditions are not met, the Threshold Test cannot be applied and the suspect cannot be charged.

5.3  The Threshold Test may only be applied where either of the following two scenarios applies and all three conditions at paragraph 5.11 – 5.13 apply.  

First scenario - Further evidence is being obtained to meet the evidential stage of the Full Code Test

5.4  Prosecutors must be satisfied that both conditions (a) and (b) are met:

a)  There are reasonable grounds to suspect that the person to be charged has committed the offence

5.5  Prosecutors must be satisfied, on an objective assessment of the evidence, that there are reasonable grounds to suspect that the person to be charged has committed the offence. The assessment must consider the impact of any defence or information that the suspect has put forward or on which they might rely.

5.6  In determining whether there are reasonable grounds to suspect, prosecutors must consider all of the material or information available, whether in evidential format or otherwise. Prosecutors must be satisfied that the material to be relied on at this stage is:

i.    capable of being put into an admissible format for presentation in court; and
ii.   reliable; and
iii.  credible.

b)  Further evidence can be obtained to provide a realistic prospect of conviction

5.7  Prosecutors must be satisfied that there are reasonable grounds to believe that the continuing investigation will provide further evidence, within a reasonable period of time, so that all the evidence together is capable of establishing a realistic prospect of conviction in accordance with the Full Code Test.

5.8  The likely further evidence must not be merely speculative. It must be identifiable and likely to point towards the guilt of the suspect. In reaching this decision prosecutors must consider:
i.   the nature, extent and admissibility of any likely further evidence and the impact it will have on the case;
ii.  the reasons why the evidence is not already available;
iii. the time required to obtain the further evidence and whether any consequential delay is reasonable in all the circumstances.

Or:

Second scenario - It is not appropriate to apply the evidential stage of the Full Code Test, due to outstanding reasonable lines of inquiry

5.9  Whilst the prosecutor is satisfied, on the available evidence, that it would otherwise be appropriate to apply the evidential stage of the Full Code Test, there are outstanding reasonable lines of inquiry that may affect its application.    

5.10  If either of the two scenarios above applies, prosecutors must be satisfied that all of the following three conditions are also met:

First condition - The seriousness or the circumstances of the case justifies the making of an immediate charging decision

5.11  The seriousness and the circumstances of the case should be assessed in relation to the alleged offending and should be linked to the level of risk created by granting bail.

Second condition - There are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case it is proper to do so

5.12  This determination must be based on a proper risk assessment, which reveals that the suspect is not suitable to be bailed, even with substantial conditions. For example, a dangerous suspect who poses a serious risk of harm to a particular person or the public, or a suspect who poses a serious risk of absconding or interfering with witnesses. Prosecutors should not accept, without careful enquiry, any unjustified or unsupported assertions about risk if release on bail were to take place.

Third condition - It is in the public interest to charge the suspect

5.13  If the other parts of the Threshold Test are satisfied, prosecutors must apply the public interest stage of the Full Code Test based on the information available at that time.

Reviewing the Threshold Test

5.14  A decision to charge under the Threshold Test must be kept under review. The prosecutor should be proactive to secure from the police the identified outstanding evidence or other material in accordance with an agreed timetable. The evidence must be regularly assessed to ensure that the charge is still appropriate and that continued objection to bail is justified. The Full Code Test must be applied as soon as is reasonably practicable and, in Crown Court cases, usually before the formal service of the prosecution case.

Question 2

Do you have any views on the revised Threshold Test?

Selection of Charges

6.1  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;
c)  allow a confiscation order to be made in appropriate cases, where a defendant has benefitted from criminal conduct; and
d)  enable the case to be presented in a clear and simple way.

6.2  This means that prosecutors may not always choose or continue with the most serious charge where there is a choice and the interests of justice are met by selecting the lesser charge.

6.3  Prosecutors should never proceed with more charges than are necessary just to encourage a defendant to plead guilty to a few. In the same way, they should never proceed with a more serious charge just to encourage a defendant to plead guilty to a less serious one.

6.4  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.

6.5  Prosecutors must take account of any relevant change in circumstances as the case progresses after charge.

Out-of-Court Disposals

7.1  An out-of-court disposal may take the place of a prosecution if it is an appropriate response to the offender and/or the seriousness and consequences of the offending.

7.2  Prosecutors must follow any relevant guidance when asked to advise on or authorise an out-of-court disposal, including any appropriate regulatory proceedings, a punitive or civil penalty, or other disposal. They should ensure that the appropriate evidential standard for the specific out-of-court disposal is met including, where required, a clear admission of guilt, and that the public interest would be properly served by such a disposal.

Court Venue

8.1  Prosecutors must have regard to the guidelines on sentencing and allocation when making submissions to the magistrates’ court about where the defendant should be tried.

8.2  Speed must never be the only reason for asking for a case to stay in the magistrates’ court. But prosecutors should consider the effect of any likely delay if a case is sent to the Crown Court, including the possible effect on any victim or witness.

8.3  Prosecutors should bear in mind that if confiscation proceedings are required, these may only take place in the Crown Court. Summary proceedings may be committed for that purpose, where appropriate.

Venue for trial in cases involving children and young people

8.4  Prosecutors must bear in mind that children and young people (under 18s) should be tried in the youth court wherever possible. It is the court which is best designed to meet their specific needs. A trial of a child or young person in the Crown Court should be reserved for the most serious cases or where the interests of justice require a child or young person to be jointly tried with an adult.

Accepting Guilty Pleas

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.

9.2  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; and to enable the court to make the necessary orders to recover any benefit obtained by the defendant in the course of their offending. Prosecutors must never accept a guilty plea just because it is convenient.

Question 3

Prosecutors are required to consider a suspect’s/defendant’s proceeds of crime when deciding whether to charge [4.14.b], when selecting charges [6.1.c], when making submissions on court venue [8.3] and when a defendant offers a plea [9.2]. Do you have any observations on these requirements?

9.3  In considering whether the pleas offered are acceptable, prosecutors should ensure that the interests and, where possible, the views of the victim, or in appropriate cases the views of the 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 prosecutor.

9.4  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.

9.5  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, prosecutors will consider whether a prosecution is required for that offence. Prosecutors should explain to the defence advocate and the court that the prosecution of that offence may be subject to further review, in consultation with the police or other investigators wherever possible.

9.6  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, prosecutors must also bear in mind the fact that ancillary orders can be made with some offences but not with others.

Reconsidering a Prosecution Decision

10.1  People should be able to rely on decisions taken by the CPS. Normally, if the CPS tells a suspect or defendant that there will not be a prosecution, or that the prosecution has been stopped, the case will not start again. But occasionally there are cases where the CPS will overturn a decision not to prosecute or to deal with the case by way of an out-of-court disposal or when it will restart the prosecution, particularly if the case is serious.

10.2  These cases include:

a)  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;
b)  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;
c)  cases which are not prosecuted or are stopped because of a lack of evidence but where more significant evidence is discovered later; and
d)  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.

10.3  Victims may seek a review of certain CPS decisions not to start a prosecution or to stop a prosecution, under the Victims’ Right to Review Scheme.

Question 4

Do you have any further comments on the proposed revisions to the Code?