Most people assume that if the police have gathered enough evidence to charge someone, a prosecution will automatically follow. In fact, that is only half of the decision the Crown Prosecution Service must make.
Before authorising a charge, a prosecutor must usually be satisfied both that there is a realistic prospect of conviction and that a prosecution is required in the public interest. This second part of the Full Code Test is sometimes misunderstood. It does not ask whether the public would find the case interesting, whether it has attracted attention online or whether people are calling for someone to be prosecuted. It asks whether bringing criminal proceedings is the right and proportionate response in all the circumstances.
That distinction matters. It means there are cases in which the CPS accepts that an offence may have been committed and that the evidence could support a conviction, but still decides that prosecution is not the most appropriate outcome. It also means that early, well-prepared representations from a defence solicitor can sometimes influence the decision before a charge is brought.
The two parts of the Full Code Test
The CPS does not usually begin by asking whether prosecution would be fair or desirable. It must first consider the evidence. The prosecutor asks whether the available material provides a realistic prospect of conviction before an objective, impartial and properly directed court. If that evidential test is not met, the case should not proceed, regardless of how serious the allegation may appear.
Only when there is sufficient evidence does the prosecutor move to the public interest stage. At that point, the question changes. The prosecutor must decide whether society is better served by putting the suspect through the criminal courts or whether another course would be more appropriate. The answer depends on the seriousness of the alleged conduct, the harm caused, the circumstances of the suspect and the victim, and the likely effect of prosecution.
The two stages are separate. A strong public interest in prosecution cannot make up for weak evidence, and sufficient evidence does not automatically mean that a prosecution must follow.
What does ‘the public interest’ actually mean?
The phrase can sound vague, but the Code for Crown Prosecutors provides a structured framework. Prosecutors must look at the case as a whole and balance the factors pointing towards prosecution against those suggesting that another outcome would be fairer or more proportionate.
The criminal courts are an important public resource, but prosecution is also a serious intervention in a person’s life. It may affect employment, family relationships, reputation and health long before a court reaches a verdict. The public interest test recognises that criminal proceedings should be brought where they are justified, not simply because they are technically possible.
This does not mean that the CPS approaches the exercise as an act of sympathy towards a suspect. Its task is to make an objective decision on behalf of the public. Sometimes the interests of justice require a prosecution. In other cases, those same interests may be better served by a caution, a community resolution, another out-of-court disposal or no further action.
When is prosecution more likely to be in the public interest?
The more serious the alleged offending, the more likely it is that prosecution will be required. Cases involving significant violence, threats, weapons or substantial physical or psychological harm will usually attract a strong public interest in prosecution. The same is true where the alleged conduct was motivated by hostility or discrimination, where a vulnerable person was targeted, or where the suspect is said to have abused a position of trust or authority.
Prosecution may also be considered particularly important where the conduct forms part of organised or repeated offending, where the suspect is alleged to have played a leading role, or where bringing the case is necessary to protect the public and maintain confidence in the criminal justice system.
Serious sexual allegations, substantial fraud, offences involving public corruption and conduct creating a significant risk to others will normally be prosecuted where the evidence is sufficient. In cases of that kind, personal mitigation may still be relevant, but it is less likely to outweigh the wider public interest in the court determining the allegation.
When might prosecution not be in the public interest?
The public interest test has its greatest practical effect in cases where the alleged offence is relatively minor or where the circumstances are unusual. A prosecutor may consider whether the incident was isolated, whether the harm was limited, whether the suspect played only a small part and whether the consequences of prosecution would be out of proportion to the seriousness of the conduct.
Age and maturity can be important, particularly where a young person has made a one-off mistake and can be dealt with effectively without being drawn further into the criminal justice system. Serious physical or mental ill health may also be relevant, especially if prosecution would cause a level of harm that is disproportionate to the alleged offence or would serve little practical purpose.
The prosecutor may also ask whether an out-of-court disposal would provide a suitable and effective response. A caution or community-based resolution can still mark the seriousness of the behaviour, require accountability and protect the public without the delay and expense of court proceedings.
No single consideration will normally determine the outcome. A minor offence may still need to be prosecuted because of the surrounding circumstances, while a more serious-looking allegation may have exceptional features that justify a different response. The CPS must balance the complete picture rather than apply a mechanical checklist.
Does the complainant decide whether the case goes ahead?
A complainant cannot simply ‘drop the charges’. Criminal proceedings are usually brought by the CPS on behalf of the public, so the final decision belongs to the prosecutor rather than the person who made the allegation.
The complainant’s wishes are nevertheless important. If they no longer want to support the case, the CPS should consider why. There may be concerns about fear, pressure or intimidation, or the complainant may feel that prosecution would cause further harm. The prosecutor will also look at the seriousness of the allegation and consider whether there is reliable evidence from other sources.
In some cases, the withdrawal of support means there is no longer enough evidence and the proceedings come to an end. In others, the CPS may decide that the evidence remains sufficient and that continuing is necessary in the public interest, even though the complainant would prefer the case not to proceed.
Can a suspect’s personal circumstances affect the decision?
Yes. The Code requires prosecutors to consider all relevant circumstances, including the suspect’s age, maturity, health and level of involvement in the alleged offence. It may also be relevant whether the incident appears to have been entirely out of character or forms part of repeated behaviour.
The likely impact of prosecution can be considered as well. That does not mean that losing a job or suffering embarrassment will usually prevent a serious case from going ahead. Many prosecutions have difficult consequences. The question is whether those consequences would be so disproportionate, when set against the alleged conduct and the need to protect the public, that prosecution would no longer be justified.
Arguments based on personal circumstances are much stronger when supported by evidence. Medical reports, information about caring responsibilities, proof of rehabilitation or material explaining an exceptional background can give the prosecutor a proper basis on which to assess the case. Unsupported assertions are far less likely to carry weight.
Can a solicitor argue that prosecution is not in the public interest?
A defence solicitor can make pre-charge representations asking the police or CPS to reconsider whether the Full Code Test is met. Those representations may address both the strength of the evidence and the public interest in prosecution.
A persuasive submission will not simply say that the client is a good person or that a prosecution would be upsetting. It should identify the relevant principles, explain why they apply to the particular facts and support the argument with reliable evidence. Depending on the case, it may show that an out-of-court disposal would achieve a fair result, that the alleged conduct was exceptional and unlikely to be repeated, or that compelling health or humanitarian considerations make prosecution disproportionate.
Timing is important. Public interest arguments are generally most useful before the charging decision has been made, while the prosecutor is actively considering the Full Code Test. They can still be raised after charge because the CPS must keep every case under review, but the best opportunity to prevent proceedings is usually at the earliest stage.
Serious allegations require a realistic approach
It is important not to give false hope. Where the evidence supports a serious allegation, the public interest will usually favour prosecution. The CPS is unlikely to decide that a case involving serious violence, a sexual offence, major financial loss or substantial danger to the public should be dealt with informally merely because the suspect has no previous convictions or faces personal difficulties.
The public interest test is not a general escape route from prosecution. It is a safeguard designed to ensure that charging decisions are fair, proportionate and consistent with the proper use of the criminal courts. Its greatest value is in cases where the circumstances genuinely justify a different outcome and where those circumstances are clearly and persuasively presented.
Why early legal advice can make a difference
Many suspects do not seek specialist advice until after they have been charged. By then, an important opportunity may have been lost. Where the case is still under investigation, a solicitor can review the available evidence, identify the issues likely to influence the CPS and prepare focused representations before the prosecutor reaches a decision.
That work may involve correcting a misunderstanding, providing documents the police have not obtained, explaining the client’s limited role or presenting independent evidence about health and personal circumstances. Even where the case cannot be stopped, early engagement can help narrow the issues and ensure that the decision is made on a more complete and accurate picture.
Speak to Chetwode before the charging decision is made
If you are under investigation, do not assume that a charge is inevitable or wait for the CPS to make its decision before seeking advice. The period before charge may be the best opportunity to influence the course of the case.
Chetwode Criminal Defence Solicitors advises privately paying clients facing criminal investigations throughout England and Wales. We review the evidence, identify weaknesses in the proposed prosecution and, where appropriate, prepare detailed pre-charge representations addressing both the evidential and public interest stages of the Full Code Test.
No solicitor can promise that the CPS will decide not to prosecute. What we can do is ensure that the prosecutor sees the strongest, clearest and best-supported case on your behalf before that decision is made. Contact Chetwode Criminal Defence Solicitors as soon as possible to arrange a confidential discussion about the investigation and the steps that can be taken now.