Can the CPS drop charges after a case goes to court?
People often believe that once they have been charged with a criminal offence, the decision is final and the case will inevitably proceed to trial. That is not the case.
The Crown Prosecution Service (CPS) has an ongoing duty to keep every prosecution under review. If circumstances change, or new evidence suggests that a conviction is no longer likely or that a prosecution is no longer in the public interest, the CPS must reconsider whether the case should continue.
Sometimes charges are brought to an end before the first court hearing. In other cases, the decision is made months later or even after a trial has begun. This is why specialist legal advice remains important after charge, rather than only during the police investigation.
The CPS must keep every case under review
Charging a suspect is not the end of the prosecutor’s decision-making process. The Code for Crown Prosecutors requires cases to be reviewed continually as they move through the criminal justice system. Throughout the life of the case, the CPS must continue to ask two fundamental questions:
- Is there still a realistic prospect of conviction?
- Is continuing the prosecution still in the public interest?
If the answer to either question changes, the CPS should reconsider whether the prosecution ought to continue. A case should not proceed simply because a charge has already been authorised.
Why might charges be dropped?
There are many reasons why the CPS may decide that a prosecution should not continue after charge. A key witness may withdraw their support or become unavailable, while new evidence may undermine an important part of the prosecution case. Disclosure may reveal material that assists the defence, or CCTV, phone records, location data or forensic evidence may contradict the account on which the charge was based.
The case may also be affected by an expert opinion that casts doubt on the prosecution’s conclusions, or by a legal argument showing that an essential element of the offence cannot be proved. In some cases the evidence may remain sufficient, but a change in circumstances means that continuing the prosecution is no longer in the public interest.
The important point is that prosecutors must make their decision on the evidence and circumstances as they exist at the time of review. They are not required to adhere to the original charging decision when the picture has materially changed.
What is continuing review?
The CPS describes this process as continuing review. As the police obtain further evidence and the defence case becomes clearer, the prosecutor must decide whether the Full Code Test is still met.
That review may be prompted by further information from the police, the service of a defence statement or a closer examination of unused material. It may take place before a hearing, during trial preparation or, in appropriate cases, while the trial itself is underway. The timing is less important than the underlying principle: a prosecution should continue only for as long as the evidential and public interest tests remain satisfied.
Can new defence evidence make a difference?
Yes. One of the most common reasons for a prosecution being reconsidered is the emergence of evidence that was not available when the charging decision was made.
Previously unavailable CCTV footage or a mobile phone download may show that events did not happen in the way alleged. Location data, financial records or medical evidence may provide an innocent explanation that investigators had not previously considered. A witness statement or expert report may also expose a weakness in the prosecution case that was not apparent at the outset.
Sometimes a single piece of evidence changes the entire complexion of the case. In other matters, it is the combined effect of several smaller points that causes the prosecutor to conclude that there is no longer a realistic prospect of conviction.
What if the complainant changes their mind?
People often ask whether a complainant can simply “drop the charges”. A complainant cannot personally end a criminal prosecution because that decision belongs to the CPS.
However, if a complainant no longer wishes to support the case, the prosecutor must consider the reasons and assess what evidence remains. If the complainant’s evidence is essential and cannot properly be relied upon, the case may no longer meet the evidential test. On the other hand, where there is strong independent evidence or the allegation is particularly serious, the CPS may decide that the prosecution should continue despite the complainant’s wishes.
Can the defence ask the CPS to reconsider?
Yes. Defence solicitors can make written representations inviting the CPS to review the case in light of new evidence, disclosure or legal argument. Those representations may identify inconsistencies in the prosecution evidence, explain why the charge is legally defective or draw attention to developments that have occurred since the original decision.
They may also rely on fresh expert or forensic evidence that provides a different interpretation of the material. Effective representations do more than assert that the defendant is innocent. They explain clearly, with reference to the evidence and the applicable law, why the Full Code Test is no longer satisfied.
What happens if the CPS decides not to continue?
The procedure depends on the stage of the proceedings and the nature of the case. The CPS may formally discontinue the prosecution or offer no evidence in court. It may decide to withdraw one or more charges while continuing with others, or amend the charges so that they properly reflect the evidence that remains.
Although these procedures are different, the practical result may be that the defendant no longer faces some or all of the original allegations. A solicitor should explain precisely what has happened and whether the decision finally brings the relevant proceedings to an end.
Does this happen often?
It happens more often than many people realise because criminal cases continue to develop after charge. Witnesses become unavailable, new evidence emerges and disclosure may reveal material that changes the apparent strength of the allegation. Legal submissions may succeed, while expert evidence may challenge an assumption on which the prosecution case depends.
Charging decisions are necessarily made using the information available at a particular point in time. When that information changes, the prosecutor’s assessment should change with it.
Why specialist legal representation matters
One of the most damaging assumptions a defendant can make is that nothing can be done once a charge has been brought. In reality, a great deal of important defence work takes place after charge.
An experienced defence solicitor will continue to test the prosecution evidence, analyse disclosure and identify further enquiries that may assist the defence. Where necessary, the solicitor can obtain expert evidence and make focused representations asking the CPS to reconsider the case. That work may lead to a more appropriate charge, the withdrawal of an individual allegation or the prosecution being brought to an end altogether.
Do not assume the case is over because you have been charged
Being charged is a significant step, but it is not the end of the decision-making process. The CPS remains under a continuing duty to review the evidence and ensure that the prosecution still satisfies the Full Code Test.
Where fresh evidence, disclosure problems or legal arguments emerge, there may still be a real opportunity to persuade the CPS that criminal proceedings should not continue. The prospects of doing so will depend on the facts of the individual case, but the possibility should never be dismissed without careful consideration.
How we can help
At Chetwode, we carefully review prosecutions after charge to identify weaknesses in the evidence, disclosure issues and legal arguments that may affect the CPS’s ongoing assessment. Where appropriate, we prepare detailed written representations inviting the prosecution to reconsider its decision in light of new evidence or subsequent developments.
No solicitor can guarantee that charges will be withdrawn. However, proactive case preparation and timely engagement with the prosecution can sometimes avoid an unnecessary trial, narrow the issues in dispute or significantly improve the eventual outcome.