Appendix 4 The Code for Crown Prosecutors
1 Introduction
111 The decision to prosecute an individual is a serious step. Fair and effective prosecution is
essential to the maintenance of law and order. Even in a small case a prosecution has serious
implications for all involved — victims, witnesses, and defendants. The Crown Prosecution
Service applies the Code for Crown Prosecutors so that it can make fair and consistent decisions
about prosecutions.
1.2 The Code helps the Crown Prosecution Service to play its part in making sure that justice is done.
It contains information that is important to police officers and others who work in the criminal
justice system and to the general public. Police officers should apply the provisions of this Code
whenever they are responsible for deciding whether to charge a person with an offence
1.3 The Code is also designed to make sure that everyone knows the principles that the Crown
Prosecution Service applies when carrying out its work. By applying the same principles, everyone
involved in the system is helping ro trea vitims, witnesses, and defendants fairy, while prosecuting
cases effectively.
2 General Principles
2.1 Each case is unique and must be considered on its own facts and merits. However, there are general
Principles that apply ro the way in which Crown Prosecutors must approach every case.
2.2 Crown Prosecutors must be fait, independent, and objective. They must not let any personal views
about ethnic or national origin, disability, sex, religious beliefs, political views or the sexual
oFientation of the suspect, victim, or witness influence their decisions. They must not be affected by
improper or undue pressure from any source
2.3 Iris the duty of Crown Prosecutors to make sure that the right person is prosecuted for the right
offence. In doing so, Crown Prosecutors must always actin the interests of justice and not solely for
the purpose of obtaining a conviction,
2.4 Crown Prosecutors should provide guidance and advice to investigators throughout the
investigative and prosecuting process. This may include lines of inquiry, evidential requirements,
and assistance in any pre-charge procedures. Crown Prosecutors will be proactive in identifying
and, where possible, rectifying evidential deficiencies and in bringing to an early conclusion those
cases that cannot be strengthened by further investigation
25 Ieis the duty of Crown Prosecutors to review, advise on, and prosecute cases, ensuring that the law
is properly applied, that all relevant evidence is put before the court, and that obligations of
disclosure are complied with, in accordance with the principles set out in this Code
2.6 The Crown Prosecution Service is a public authoricy for che purposes of the Human Rights Act
1998, Crown Prosecutors must apply the principles of the European Convention on Human
Rights in accordance with the Act
3 The Decision to Prosecute
3.1 In most cases, Crown Prosecutors are responsible for deciding whether a person should be charged
with a criminal offence, and if so, what that offence should be. Crown Prosecutors make these
decisions in accordance with this Code and the Director's Guidance on Charging, In those cases
where the police determine the charge, which are usually more minor and routine cases, they apply
the same provisions.
3.2 Crown Prosecutors make charging decisions in accordance with the Full Code Test (see section 5
below), other than in those limited circumstances where the Threshold ‘Test applies (see section 6
below)
3.3 The Threshold Test applies where the case is one in which it is proposed to keep the suspect in
custody after charge, but the evidence required to apply the Full Code Testis not yet av:
3.4 Where a Crown Prosecutor makes a charging decision in a
¢
le
cordance with the Threshold Test, the
must be reviewed in accordance with the Full Code Test as soon as reasonably practicable,
aking into account the progress of the investigation
4 Review
4.1. Each case the Crown Prosecution Service receives from the police is reviewed to make sure that itis
right to proceed with a prosecution. Unless the Threshold Test applies, che Crown Pros
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Appendix 4 The Code for Crown Prosecutors
Service will only sear or continue with a prosecution when the case has passed both stages of the
Full Code Test.
42 Review is a continuing process and Crown Prosecutors mutt take account of any change in
aavrenatances, Wherever possible, chey should ralk co the police first if they are thinking about
hanging the charges or stopping the case. Crown Prosecutor should also tell the police if they
ieee that some additional evidence may strengthen the case. This gives the police the chance to
provide more information thar may affect the decision
prow Crown Prosecution Service and the police work closely togethers but the final responsibility for
the decision whether or not a charge or-a case should go ahead rests with the Crown Prosecution
Service.
5 The Full Code Test
S.1 ‘The Full Code Test as ewo stages. The first stage is consideration of the evidence. If the case does
not pass the evidential stage it must not go ahead no master how important or serious it may be. If
the Lase-does pass the evidential stage, Crown Prosecurors must proceed to the second stage and
decide ifa prosecution is needed in the public interest. The evidential and public interest stages are
explained below.
4
The Evidential Stage
5.2. Crown Prosecutors must be satisfied thac there is enough evidence to provide a ‘realistic prospect of
conviction’ against each defendant on each charge, They muse consider wha the defence case may
be, and how that is likely to affect the prose
5.3 A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates or
judge hearing a case alone, properly directed in accordance with the law, is more likely than not te
vsmaict the defendant of the charge alleged. This is a separate rest from the one that the criminal
courts themselves must apply: A court should only convice if satisfied so chat ix is sure of a
defendant's guile
5.4 When deciding whether there is enough evidence to prosecute,
Menhcr the evidence ean be used and is reliable. There will be many cates which the evidence
does not give any cause for concern, But chere will also be cases in which the evidence may not be as
ic chemselves the following question
ution case,
Srown Prosecutors must consider
serong as it first appears. Crown Prosecurors must as
Can the evidence be used in court?
{Isic likely thae the evidence will be excluded by che coure There are certain legal rules which
might mean that evidence which seems relevant cannot be given at a trial. For example, is it
Tikely that the evidence will be excluded because of the way 12 which ic was gatheted? If so, is
there enough other evidence for a realistic prospect of conviction?
Is the evidence reliable?
(b) Is there evidence which might support ot detract from th
t abiligyaffeceed by factors such as the defendant's age, intelligence, oF level of understan
‘Whar explanation has the defendant given’? Isa court likely co End it credible in che light of the
evidence as a whole? Does it support an innocent explanation?
(d) If the identity of the defendant is likely to be questioned, is the
enough?
(© Is the witness's background likely to weaken the prosecution case? For example, does the witness
have any motive that may affect his or her arcitude ro che case, or relevant previous conviction?
payee eoncetns over the accuracy of credibility of a wirmess? Are these concerns based on
AA ence of simply information with nothing to support it Is there further evidence which the
police should be asked to seek out which may support oF detract from the account of the
witness?
5.5 Crown Prosecutors should not ignore evidence because they 2f¢ 108
vcfuble. But they should look closely at it when deciding if there is a realistic prospect of conviction
reliability of a confession? Is the
«<
evidence about this strong
ita
sure that it can be used or is
The Public Interest Stage
5.6 ln 1951, Lord Shaweross, who was Attorney General, made the classic stacement on public interest,
I has never been the rule in this country
hich has been supported by Arrorneys General ever since
nT hope it never will be — that suspected criminal offences must ‘automatically be the subject of
of Commons Debates, yolume 483, column 681, 29 January 1951.)
= there is enough evidence to provide
ccution in
prosecution’. (House
5.7, The public interest must be considered in each case whe
reiligic prospect of conviction. Although there may be public niet factors against pro’
vponehoutd go ahead and those factors should be put to the coure
a particular case, often the prosect
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Appendix 4 The Code for Crown Prosecutors
for consideration when sentence is being passed. A prosecution will usually cake place unless there
are public interest factors tending against prosecution which clearly outweigh those tending in
favour; or it appears more appropriate in all the circumstances ofthe case to divers the person from
prosecution (see section 8 below),
aro Prosecutors must balance factors for and against prosecution carefully and fairly. Public
eon crore that can affect the decision to prosecute usually depend on the seriousness of the
fence or the circumstances of the suspect. Some factors may increase the need to Prosecure but
others may suggest that another course of action would be better.
-he following lists of some common public interest factors, both for and agsinst prosecution, are 208
} exhaustive. The factors that apply will depend on the facts in each case
5.
be
Some common public interest factors in favour of prosecution
5.9 The more serious the offence, the more likely itis that a prosecution will be needed in the public
interest. A prosecution is likely to be needed ift
q (a) a conviction is likely co result in a significant sentence;
f (b) a conviction is likely to result in a confiscation or any other order;
7 (c) a weapon was used or violence was threatened during the commission of the offence;
q (d) the offence was commited against a person serving the public (for example, a police or prison
i officer, of 2 nurse)
(e). the defendant was ina position of authority or trust;
3 (f) the evidence shows that the defendant was a ringleader or an organizer of the offence;
i (@) there is evidence that the offence was premeditated;
: (h) there is evidence that the offence was carried out by a groups
’ (i). the vietim of the offence was vulnerable, has been put in considerable fear, or suffered personal
attack, damage, or disturbance;
(the offence was committed in the presence of, or in close proximity 0, 2 chil
(k) the offence was motivated by any form of discrimination against the victim's ethnic or national
origin, disability, sex, religious belief, political views or sexual orientation, or the suspect
a Gemmoasteated hostility towards the victim based on any of those characteristics:
(0) there ia marked difference berween the actual or mental ages ofthe defendant and the victim,
I or if there is any element of corruption;
q lim) the defendant's previous convictions or cautions are relevant to the present offenc
(a) the defendant is alleged ro have committed the offence while under an order of the court;
(0) there are grounds for believing thar the offence is likely ro be continued or repeated, for
example, by a history of recurring conduct;
; (p) the offence, although not serious in itself, is widespread in the area where it was committed; ot
; (G) a prosecution would have a significant positive impact on maintaining community confidence
; Some common public interest factors against prosecution
4 5.10 A prosecution is less likely ro be needed if
(a) the court is likely to impose a nominal penalty:
4 {h) the defendant has already been made the subject of a sentence and any further conviction
: xe id be unlikely co result in the imposition of an additional sentence or order, unless the
; wratute of the particular offence requires a prosecution or the defendant withdraws consent ‘0
have an offence taken into consideration during sentencing;
‘ rane te ace avas committed as a result of a genuine mistake or misunderstanding (these factors
: must be balanced against che seriousness of the offence);
Ey (d)_ the loss or harm can. be described as minor and was the result of a single incident, particularly if
/ 4 it was caused by a misjudgement;
(6) there has been a long delay berween the offence taking place and the dare of the crial, unless:
the offence is serious:
the delay has been caused in pare by the defendants
the offence has only recently come to light; or
the complexity of the offence has meant that there has been a long investigation;
(0) a prosecution is likely to have a bad effect on the victim's physical or mental health, always
bearing in mind the seriousness of the offence;
(g) the defendant is elderly, or is, or was at the time of the offence, sufferiny from significant
mental or physical ill health, unless the offence is serious or there is real possibility that it may
be repeated. The Crown Prosecution Service, where necessary, applies Home Office guidelines
about how to deal with mentally disordered offenders. Crown Prosecutors must balance the
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Appendix 4 The Code for Crown Prosecutors
take place unless there desirability of diverting a defendant who is suffering
‘*igh those tending in health with the need to safeguard the general public;
divert the person from (h) the defendant has put right the loss or harm that was caused (but defendants must not avoid
Prosecution or diversion solely because they pay compensation); of
ually and fairly. Public () details may be made public that could harm sources of information, international relations, or
the seriousness of the national secutity
reed to prosecute but 5.11 Deciding on the public interest is not simply a matter of adding up the number of factors on each
side, Crown Prosecutors must decide how important each factor is in the circumstances of each case
Prosecution, are not and go on to make an overall assessment
from significant mental or physical ill
The relationship between the victim and the public interes
5:12 The Crown Prosecution Service does not act for victims or the families of victims in the same way
reeded in the public as solicitors act for their clients. Crown Prosecutors act on behalf of the public and not just in the
Proscar ant Patticular individual. However, when considering the public intereee, Crowe
Prosecutors should always take into account the consequences for the veto of whether or not to
Prosecute, and any views expressed by the victim or the victim's family.
1¢ offence; 5-13, It is imporcane chat a victim is told about a decision which makes « significant difference to the case
+a police or prison in which they are involved. Crown Prosecutors should ensure that they follow any agreed procedures
6 The Threshold Test
ve offence: 6.1 The Threshold Test requites Crown Prosecutors to decide whether there is least a reasonable
suspicion that the suspect has committed an offence, a
ind if there is, whether ic is in the public
interest to charge that suspect.
«sulfred personal 6.2 The Threshold Test is applied ro those cases in which it would not be appropriate to release a
suspect on bail after charge, but the evidence to apply the Full Code Tes is sor yet available.
1 63 There are staturory limits that restrict the time a suspect may remain in police custody before a
Shnic or national decision has to be made whether to charge or release the suspect. There will be cases where the
° be erat ody Presents a substantial bail risk if released, but much of the evidence men nor
& oF the suspect be available at the time the charging decision has to be made. Crows Prosecutors will apply the
Cand the vitim, Threshold Test to such cases for a limited period .
the victim, SA The evidential decision in each case will require consideration of a number of factors including:
* the evidence available ac the time:
ence;
fh * the likelihood and nature of further evidence being obtained
Ot cpen - * the reasonableness for believing that evidence will become available;
Fspeated, for * the time it will cake to gather that evidence and the steps being taken to do so;
Fi * the impact the expected evidence will have on the case:
committed; or * the charges that the evidence will suppor.
Wy confidence. 6.5 The public interest means the same as undet the Full Code Test, but will be based on the infor-
mation available at the time of charge which will often be limited.
6.6
A decision to charge and withhold bail must be kept under review
regularly assessed to ensure the
ver conviction justified. The Full Cod.
ler, unless the
WS consent to
The evidence gathered must be
charge is still appropriate and that continued objection to bails
est must be applied as soon as reasonably practicable
7 Selection of Charges
7.1 Crown Prosecutors should select charges which:
(chese crore (3) reflec the seriousness and excent of the offending; : -
( (0) give the court adequate powers to sentence and impose appropriate post-conviction orders; and
(©) enable the case co be presented in a clear and simple way
This means that Crown Prosecutors may not alway
charge where there is a choice.
‘al, unless 7.2 Crown Prosecutors should never go ahead with more charges than
defendant to plead guilty toa few: In the same way, they should never go ahead with a more serious
charge just to encourage a defendant to plead guilty to a less serious ove
“town Prosecutors should not change the charge simply becaus
varticularly
8 choose or continue with the most serious
ate necessary just to encourage a
¢ of the decision made by the court
uch, always or the defendant about where the case will be heard.
8 Diversion from Prosecution
significant Adults
ne ey 81 When deciding whether a case should be prosecuted in the courts, C ‘own Prosecutots should
alance the consider the alternatives co prosecution. Where appropriate, the availabilicy of suitable rel
tative, reparative, oF restorative justice processes can be considered
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Appendix 4 The Code for Crown Prosecutors
82 ‘Alternatives to prosecution for adule suspects include a simple caution and a conditional eaution
she
Simple caution sal
8.3 A simple caution should only be given if the public interest justifies it and in accordance with 10.5 P
Home Office guidelines. Where itis fele thar such a caution is appropriate, Crown Prosecutors the
must inform the police so they can caution the suspect, If the caution is not administered, because be:
the suspect refuses to accept it, a Crown Prosecutor may review the case again, 11 Pro
Conditional caution
8.4 A conditional caution may be appropriate where a Crown Prosecutor considers that while the i tac
public interest justifies a prosecution, the interests of the suspect, victim, and community may be i
better served by the suspect complying with suitable conditions aimed at schabilicctae or i
reparation. These may include restorative processes. .
8.5 Crown Prosecutors must be satisfied that there is sufficient evidence for a realistic prospect of i
conviction and that the public interest would justify a prosecution should the offer of a conditional ‘
caution be refused or the offender fail to comply with the agreed conditions of the caution, lat
8.6 In reaching theit decision, Crown Prosecutors should follow the Conditional Cautions Code of oo
Practice and any guidance on conditional cautioning issued or approved by the Director of Public na
Prosecutions. o
8.7 Where Crown Prosecutors consider a conditional caution to be appropriate, they must inform the ace
police, or other authority responsible for administering the conditional caution, 2s well ss providing 12 Re-
an indication of the appropriate conditions so that the conditional caution can be adminwtered, iP
Youths the
8.8 Crown Prosecutors must consider the interests of a youth when deciding whether it is in the public Ba
‘peers (© prosecute. However, Crown Prosecutors should not avoid prosecuting simply because of 7
the defendant's age. The seriousness of the offence or the youth's past behaviour is very important, L Pr
8.9 Cases involving youths are usually only referred to the Crown Prosecution Servic for prosecution if ae
the youth has alteady reccived a reptimand and final warning, unless the offence is ¢ serious that ;
neither of these were appropriate or the youth does not admic committing the offence. Reprimands ®
and final warnings are intended co prevent re-offending, and the fut that a further offence has
occurred indicates that attempts to divert the youth from the court system have not been effective
So the public interest will usually require a prosecution in such cases, unless there are clear public ©
interest factors against prosecution 7
9. Mode of Trial 12.3 T
9.1 The Crown Prosecution Service applies the current guidelines for magistrates who have to decide Cn
whether cases should be tried in the Crown Court when the offence ves the option and the the
defendant does not indicate a guilty pl
trial when they are satisfied that the guidelines require chem to do co.
9-2 Speed must never be the only reason for asking for a case to stay in the n
Crown Prosecutors should consider the effect of any like
Court, and any possible stress on victims
Crown Prosecutors should recommend Crown Court
gistraces’ courts. Bur
ly delay if they send a case co the Crow:
and witnesses if the case is delayed.
10 Accepting Guilty Pleas
10.1 Defendants may want to plead guilty to some, but not all, of the charges. Alternatively, they
inay wane to plead guilty to a different, possibly less serious, charge because they are admitting
only part ofthe exime. Crown Prosecutors should only accept the defendants plea if they think the
Court is able to pass a sentence that matches the seriousness of the offending, particularly where
there are aggravating features. Crown Prosecucors must never accept guilty gles just becatise it
convenient
10.2 In considering whether the pleas offered
interests of the victim and, where possible,
are acceptable, Crown Prosecutors should ensure that the
» any views expressed by che victim or victim’s family, are
taken into account when deciding whether itis in the public interest to accept the plea. However
the decision rests with the Crown Prosecutor.
10.3 Ie must be made clear to the court on what basis any plea is advanced and accepted, In cases whe
a defendant pleads guilty to the charges but on the basis of facts that ave different from the
Prosecution case, and where this may significantly aff be invited to
hear evidence to determine what happened, and the
i 10.4 Where a defendant has previously
consideration when sentencing,
Prosecutors will consider whether
fect sentence, the court shoul
n sentence on that basi
indicaced that he or she will ask the couse co rake an offence into
but then declines to admic thar offence at court, Crown
@ prosecution is required for that offence. Crown Prosecutors
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should explain co the defence adv.
subject to further review.
10.5 Particular care must be taken when considering pleas which would enable the defendant to avoid
the imposition ofa mandatory minimum sentence. When pleas are offered, Crown Prosecutors must
bear in mind the fact that ancillary orders can be made with some offences but not with others
and the court that the prosecuti
2 of that offence may be
11 Prosecutors’ Role in Sentencing
11.1 Crown Prosecutors should draw the court's attention to:
* any aggravating or mitigating factors disclosed by the prosecution case;
any victim personal staternent;
where appropriate, evidence of the impact of the offending on a community;
any statutory provisions or sentencing guidelines which may assist;
any relevant statutory provisions relating to ancillary orders (such as anti-social be
orders)
11.2 The Crown Prosecutor should challenge
. haviour
any assertion made by the defence in mitigation that is
inaccurate, misleading, or derogatory. If the defence persist in the assertion,
to the sentence, the cou
accordingly.
and it appears relevant
the facts and sentence
thould be invited to hear evidence to determine
12 Re-Starting a Prosecution
12.1 People should be able to rely on decisions taken by the Crown P
the Crown Prosecution Service tells a suspect or d
that the prosecution has been stopped,
But occasionally there are special
rosecution Service. Normally, if
jefendant that there will not be a prosecution, ot
is the end of the matter and the case will not start again.
reasons why the Crown Prosecution Service will re-start the
prosecution, particularly if the case is serious
12.2. These reasons include:
(a) rare cases where a new look at the ori
not be allowed ro stand;
(b) cases which are stopped so that mote evidence which is lik
near future can be collected and prepared. In these cases, the Crown Prosecutor will tell the
defendant that the prosecution may well start again; and
(©) cases which are stopped because of a lack of evidence but whi
discovered later
12.3 There may also be exceptional cases in w!
ginal decision shows that it was clearly wrong and should
to become available in the fairly
ere more significant evidence is
hich, following an acquictal of a serious offence, the
Crown Prosecutor may, with the written consent of the Director of Public Prosecutions, apply to
the Court of Appeal for an order quashing the acquiccal and requiring the defendant to be retried,
in accordance with Parc 10 of the Criminal Justice Act 2003
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