The Crown Prosecution Service

The Crown Prosecution Service (CPS) is responsible for prosecuting criminal cases investigated by the police in England and Wales on behalf of the State. The CPS will co-operate with the investigating and prosecuting agencies of other jurisdictions and its role is similar to that of the Crown Office in Scotland and the Public Prosecution Service in Northern Ireland. The CPS is headed by the Director of Public Prosecutions (DPP) who is answerable to the Attorney General for England and Wales. The Attorney General, in turn, is accountable to Parliament for the service provided by the CPS.

The Prosecution of Offences Act 1985 was implemented following Royal Commission recommendations that there be a single unified Crown Prosecution Service with responsibility for all public prosecutions in England and Wales. This led to the department of the DPP merging with the existing police prosecutions department, which in turn established the CPS under the direction of the DPP. The CPS started to operate in 1986.

Following the publication in June 1998 of the ‘Review of the CPS’ by Sir Iain Glidewell, the CPS changed in 1999 from 14 to 42 geographical areas. Each follows the existing boundaries of the police forces, except in London, where the area covers the boundaries of both the Metropolitan Police and the City of London Police. Each separate area is headed by a Chief Crown Prosecutor. Following the Criminal Justice Act 2003, the power of the police to charge for all but the most minor offences was transferred to the CPS. In 2006, with the creation of the Serious Organised Crime Agency, the CPS also became responsible for the prosecution of cases investigated and charged by that body.

As the principal prosecuting authority in England and Wales, the CPS is responsible for criminal cases beyond the police investigatory stage. The CPS:

• reviews cases submitted by the police;
• decides which cases should be prosecuted;
• determines any charges in all but minor cases;
• advises the police in the early stages of investigations;
• prepares cases for court and presents them in both the magistrates’ courts and the Crown Court;
• provides information, assistance and support to victims and prosecution witnesses.

Primarily, the CPS will review the evidence gathered by the police and provide guidance. During pre-charge procedures and throughout the investigative and prosecuting process the CPS may assist the police by explaining what additional work or evidence could raise the case to a viable charging standard thereby rectifying any evidential deficiencies.

Once the evidence is gathered, the CPS will then decide, on the basis of this evidence, whether a case should be pursued or dropped. If the CPS is satisfied that there is enough evidence to prosecute, they will do so either in the magistrates’ court and, if the case needs to go to Crown Court, they will instruct an independent advocate to prosecute for them or, increasingly, they may use their own in-house higher court advocates.

Although the CPS works closely with the police, it is independent of them and except for very minor cases, the decision whether or not to prosecute a case rests with the CPS. The independence of the CPS is of fundamental constitutional importance. Casework decisions must be taken by Crown Prosecutors with fairness, impartiality and integrity to help deliver justice for victims, witnesses, defendants and the public.

The Code for Crown Prosecutors is issued by the DPP under s 10 of the Prosecution of Offences Act 1985. It gives guidance on the general principles to be applied when Crown Prosecutors make decisions about prosecutions. In cases where the police determine the charge, which as previously indicated are usually more minor and routine cases, the police should also apply the provisions of this Code.

The latest Code is the seventh edition and replaces all earlier versions. The Code is a public document and can be accessed on the CPS official website. It is available in a number of different languages including English, Welsh, Arabic, Bengali, French, Polish, Chinese, Gujarati, Somali, Punjabi, Tamil, and Urdu.

The Code sets out the grounds upon which prosecutions are refused, discontinued or proceeded with. It aims to ensure that decisions about prosecutions are fair, independent, objective and consistent and that the prosecutions themselves are fair and effective. While each case is unique and must be considered on its own facts and merits, there are general principles that apply to the way Crown Prosecutors must approach cases. Crown prosecutors must:

• be fair, independent and objective and not be influenced by personal views about the suspect, victim or witness nor be affected by improper or undue pressure from any source;
• make sure that the right person is prosecuted for the right offence, acting in the interests of justice and not solely for the purpose of obtaining a conviction;
• provide guidance and advice to investigators throughout the investigative and prosecuting process and continually review cases in light of any changes in circumstances or evidence;
• ensure the law is properly applied to cases, all relevant evidence is put before the court and that obligations of disclosure are complied with;
• apply the principles of the European Convention on Human Rights in accordance with the Human Rights Act 1998.

The decision as to whether a person should be charged with a criminal offence and what that offence should be are made in accordance with the Full Code Test (s 5 of the Code for Crown Prosecutors), unless in limited circumstances the Threshold Test applies (s 6 of the Code).

The Threshold Test can be applied where it is inappropriate to release the suspect on bail but sufficient evidence is not yet available at the time the charging decision has to be made to apply the Full Code Test. However, there must be at least a reasonable suspicion that the suspect has committed an offence, and if so, it is in the public interest to charge that suspect.

As there are statutory limits that restrict the time a suspect may remain in police custody, Crown Prosecutors can only apply the Threshold Test for a limited period and the case must be reviewed in accordance with the Full Code Test as soon as reasonably practicable.

The Full Code Test is two-stage, where the CPS will only prosecute a case if:

• there is sufficient evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge; and
• it is in the public interest to bring the case to court.

When deciding whether there is sufficient evidence, Crown Prosecutors consider both whether the evidence can be used in court and whether it is reliable. In deciding whether it is in the public interest Crown Prosecutors must weigh those factors in favour of and against prosecution carefully and fairly although the more serious offences are more likely to be regarded as in the public interest.

While the CPS does not act for victims or families of victims, but rather on behalf of the public, when considering the public interest Crown Prosecutors should always take into account the consequences for the victim of whether or not to prosecute, and any views expressed by the victim or their family.

Factors to be considered when deciding to prosecute include:

• the seriousness of the offence;
• the involvement and culpability of the suspect;
• whether the offence was committed against a person serving the public, eg, a nurse, or against a vulnerable person, eg, the elderly or a child;
• whether the offence was premeditated, carried out by a group or motivated by a form of discrimination;
• the age of the defendant – the younger the suspect, the less likely it is that a prosecution is required;
• whether the suspect is, or was at the time of the offence, suffering from any significant mental or physical ill health;
• whether the defendant has committed similar offences and/or the offending is likely to recur;
• the impact on the community;
• whether prosecution is proportionate to the likely outcome (cost is an issue, but a prosecution should not be rejected on the grounds of cost alone);
• whether a prosecution is likely to have an adverse effect on the victim’s physical or mental health;
• whether details may be made public that could harm sources of information, international relations or national security.

Prosecutors should select charges which:

• reflect the seriousness and extent of the offending supported by the evidence;
• give the court adequate powers to sentence and impose appropriate post-conviction orders; and
• enable the case to be presented in a clear and simple way.

When deciding whether a case should be prosecuted, Crown Prosecutors should consider the alternatives to prosecution such as a simple caution, a conditional caution, any appropriate regulatory proceedings, a punitive or civil penalty, or other disposal.

Where defendants want to plead guilty to some but not all the charges or to a different, possibly less serious charge because they only accept certain facts, 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.

Crown Prosecutors must not accept a guilty plea simply because it is convenient. Any decision as to whether it is in the public interest to accept a plea should always take into account the views of the victim or victim’s family, although ultimately the final decision rests with the CPS.

Sentencing is a decision for the court, but Crown Prosecutors should assist the court by drawing attention to any:

• aggravating or mitigating factors disclosed by the prosecution case;
• any Victim Personal Statement;
• evidence of the impact of the offending on a community;
• statutory provisions, sentencing guidelines, or guideline cases; and
• relevant statutory provisions relating to ancillary orders (such as anti-social behaviour orders).

The Crown Prosecutor should also challenge any assertion made by the defence in mitigation that is inaccurate, misleading or derogatory.