Why are some offences are prosecuted, whereas some are not?
It’s a frequently asked question. The answer often comes down to the Code for Crown Prosecutors.
The Code essentially asks two questions:
- Is there enough evidence against the accused to bring the case? (“the evidential stage”)
- Is it in the public interest to prosecute? (“the public interest stage”)
The Evidential Test
In answering question 1, crown prosecutors must ask themselves whether there is a “realistic prospect of conviction” against the defendant. In assessing this, the prosecutor will consider what the defence case may be. The test is an objective one. In considering the evidence, the prosecutor must ensure it is admissible in a criminal court, and that it is reliable.
If there is not enough evidence to bring the case, the matter will not proceed to the public interest assessment and will not go to court.
The Public Interest Test
“[i]t 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…[There should be a prosecution] wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest”
– Sir Hartley Shawcross, 1951 (the then Attorney General), taken from the House of Commons Debates, Volume 483, 29 January 1951, courtesy of the 2010 Code for Crown Prosecutors.
The Code suggests various factors to be taken into account:
“A prosecution is more likely to be required if:
a) a conviction is likely to result in a significant sentence;
b) a conviction is likely to result in an order of the court in excess of that which a prosecutor is able to secure through a conditional caution;
c) the offence involved the use of a weapon or the threat of violence;
d) the offence was committed against a person serving the public (for example, a member of the emergency services; a police or prison officer; a health or social welfare professional; or a provider of public transport);
e) the offence was premeditated;
f) the offence was carried out by a group;
g) the offence was committed in the presence of, or in close proximity to, a child;
h) the offence was motivated by any form of discrimination against the victim’s ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation or gender identity; or the suspect demonstrated hostility towards the victim based on any of those characteristics;
i) the offence was committed in order to facilitate more serious offending;
j) the victim of the offence was in a vulnerable situation and the suspect took advantage of this;
k) there was an element of corruption of the victim in the way the offence was committed;
l) there was a marked difference in the ages of the suspect and the victim and the suspect took advantage of this;
m) there was a marked difference in the levels of understanding of the suspect and the victim and the suspect took advantage of this;
n) the suspect was in a position of authority or trust and he or she took advantage of this;
o) the suspect was a ringleader or an organiser of the offence;
p) the suspect’s previous convictions or the previous out-of-court disposals which he or she has received are relevant to the present offence;
q) the suspect is alleged to have committed the offence in breach of an order of the court;
r) a prosecution would have a significant positive impact on maintaining community confidence;
s) there are grounds for believing that the offence is likely to be continued or repeated.
Some common public interest factors tending against prosecution
A prosecution is less likely to be required if:
a) the court is likely to impose a nominal penalty;
b) the seriousness and the consequences of the offending can be appropriately dealt with by an out-of-court disposal which the suspect accepts and with which he or she complies
c) the suspect has been subject to any appropriate regulatory proceedings, or any punitive or relevant civil penalty which remains in place or which has been satisfactorily discharged, which adequately addresses the seriousness of the offendingand any breach of trust involved;
d) the offence was committed as a result of a genuine mistake or misunderstanding;
e) 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;
f) 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 wholly or in part by the suspect;
• the offence has only recently come to light;
• the complexity of the offence has meant that there has been a long investigation; or
• new investigative techniques have been used to re-examine previously unsolved crimes and, as a result, a suspect has been identified.
g) 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 and the views of the victim about the effect of a prosecution on his or her physical or mental health;
h) the suspect played a minor role in the commission of the offence;
i) the suspect has put right the loss or harm that was caused (but a suspect must not avoid prosecution or an out-of-court disposal solely because he or she pays compensation or repays the sum of money he or she unlawfully obtained);
j) the suspect 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. Prosecutors apply Home Office guidelines about how to deal with mentally disordered offenders and must balance a suspect’s mental or physical ill health with the need to safeguard the public or those providing care services to such persons;
k) a prosecution may require details to be made public that could harm sources of information, international relations or national security.”
The Code was revised in 2010. There is currently a consultation on a revised edition, which can be accessed here. The consultation was launched by the DPP, Keir Starmer QC, in July. In a statement to the CPS, Mr Starmer stated: “This version of the Code is intended to help the CPS take a more focused, proportionate and effective approach to bringing criminals to justice.”
The revisions include an extra factor in the evidential stage: Is the evidence credible?
The consultation also considers a revision in the public interest assessment. The following questions are considered:
a) How serious is the offence committed?
b) What is the level of culpability of the suspect?
c) What are the circumstances of and the harm caused to the victim?
d) Is the suspect under 18 years old?
e) What is the impact on the community?
f) Is a prosecution a proportionate response?
g) Do sources of information require protecting?
The consultation is now closed. Stay turned for the results.