Most people have never heard of the Code for Crown Prosecutors until they find themselves accused of a criminal offence. Yet it is one of the most important documents in the criminal justice system.
The Code sets out the rules that Crown Prosecutors – the people who run the prosecution side of a case – must follow when deciding whether someone should be charged with a criminal offence and whether a prosecution should continue. It is intended to ensure that charging decisions are made fairly, consistently and independently, rather than simply because the police believe somebody has committed an offence.
Understanding how the Code works can also help you understand why an experienced criminal defence solicitor can make such a significant difference before a case even reaches court.
The CPS does not simply prosecute every case
You might assume that once the police have completed an investigation, the Crown Prosecution Service (CPS) will automatically prosecute. That is not how the system works.
The CPS is required to review the evidence independently. Prosecutors are expected to act objectively and fairly. Their role is not to secure convictions at all costs but to decide whether a prosecution is justified under the Code. In cases involving serious allegations, the police cannot charge a suspect without first obtaining authority from the CPS.
The Full Code Test
The heart of the Code is what is known as the Full Code Test. Before a prosecution can proceed to trial, prosecutors must be satisfied that two separate tests have been met.
Stage One – Is there sufficient evidence?
The first question is whether there is a realistic prospect of conviction.
This is more demanding than simply asking whether there is some evidence pointing towards guilt. Prosecutors must consider whether an objective, impartial and properly directed jury or magistrates is more likely than not to convict on the evidence that is likely to be available at trial.
Importantly, prosecutors must not look only at evidence that supports the allegation. They must also consider evidence that assists the suspect, potential weaknesses in the prosecution case and any likely defence.
For example, they should consider whether witnesses are likely to be reliable; are inconsistencies in the evidence; whether important evidence may be inadmissible; whether there are obvious lines of defence; and whether further enquiries might strengthen or weaken the case.
This is one reason why early legal representation is so valuable. A proactive defence solicitor can make representations to the CPS lawyers, which include the provision of information or evidence that the police investigation has overlooked, which may significantly affect the CPS's assessment.
Stage Two – Is a prosecution in the public interest?
Even where there is sufficient evidence, the CPS must go on to consider whether prosecuting the case is in the public interest.
Contrary to popular belief, not every offence that could be prosecuted should be prosecuted.
The Code identifies a range of factors that prosecutors should weigh when making this decision. These include the seriousness of the offence; the circumstances of the suspect; the impact on the victim; the suspect's level of culpability; the age and vulnerability of those involved; whether prosecution is a proportionate response.
In serious offences there will usually be a strong public interest in prosecution. However, in less serious cases there may be situations where an out-of-court disposal or no further action is considered more appropriate.
The Threshold Test
Occasionally the CPS will authorise charges before all of the evidence has been obtained and they believe the suspect needs to be kept in custody.
This happens under what is known as the Threshold Test. It can only be used where there are reasonable grounds to suspect that the person committed the offence. Secondly, the prosecutor must be confident that further evidence can be obtained that will provide a realistic prospect of conviction. Thirdly, the offence must be serious enough to justify an immediate charging decision. Fourthly, there must be substantial grounds for objecting to bail. Finally, an immediate charge must be in the public interest.
A charge brought under the threshold test must be kept under review, in particular the prosecutor must be proactive in seeking evidence from the police and assessing whether they should still be objecting to the defendant’s release from custody. As soon as the anticipated further evidence is received, the full code test must be applied to the case.
Why the Code matters to the defence
From a defence solicitor's perspective, the Code is far more than simply guidance for prosecutors. Every criminal case should be examined through the same two questions:
Is there really enough evidence to provide a realistic prospect of conviction?
Even if there is, is prosecution genuinely in the public interest?
An experienced defence lawyer will often identify weaknesses that may have been overlooked, highlight evidential problems, obtain material that supports the suspect's account or make written representations explaining why the Code has not been satisfied. Such material can be used at trial to undermine the prosecution case, but it can also be used to persuade the CPS not to authorise charges or to drop a case once underway.
You should take advice from an experienced solicitor who can make the appropriate judgement calls about whether evidence should be disclosed to the prosecutor or not. While early disclosure could mean no charges are brought or a case is dropped, they could also forewarn the prosecution and give them an opportunity to prepare and rebut the evidence.
Common misconceptions
One of the biggest misconceptions is that the CPS only considers whether someone is probably guilty.
That is incorrect.
The Code requires prosecutors to assess both the strengths and weaknesses of the evidence. They must remain independent of the police investigation and keep every case under review as new evidence emerges. If the evidential test is no longer met, or the public interest changes, a prosecution should not continue.
How early legal advice can make a difference
The period before a charging decision is often the best opportunity to influence the outcome of a criminal investigation.
Early representations to the police or CPS, supported by documentary evidence, witness accounts or legal argument, may prevent an unnecessary prosecution altogether.
If you are under investigation, obtaining specialist legal advice before a charging decision is made can sometimes be every bit as important as your defence at trial.
Need advice?
If you have been arrested, interviewed under caution or informed that your case has been referred to the CPS for a charging decision, obtaining early specialist advice can be crucial.
At Hartley's, we regularly make pre-charge representations on behalf of clients, challenging the evidence and highlighting why the Code for Crown Prosecutors does not justify a prosecution. In the right case, effective early intervention can prevent charges from ever being brought.