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Private Prosecutions

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Principle

A private prosecution is a prosecution started by a private individual, or entity who/which is not acting on behalf of the police or other prosecuting authority.  A prosecuting authority includes, but is not limited to, an entity which has a statutory power to prosecute.

There are a number of organisations that regularly prosecute cases before the courts of England and Wales but they do so as private individuals, using the right of any individual to bring a private prosecution.  One example is the RSPCA.

The right to bring private prosecutions is preserved by section 6(1) of the Prosecution of Offences Act 1985. There are, however, some limitations:

  • the Director of Public Prosecutions (DPP) has power under section 6(2) of the Prosecution of Offences Act  to take over private prosecutions;
  • in some cases, the private prosecutor must seek the consent of the Attorney General or of the DPP before the commencement of proceedings.

In principle, there is nothing wrong in allowing a private prosecution to run its course through to verdict and, in appropriate cases, sentence. The fact that a private prosecution succeeds is not an indication that the case should have been prosecuted by the CPS. Parliament has specifically allowed for this possibility by the way section 6 is constructed: there is no requirement for the CPS to take over a private prosecution.

However, there will be instances where it is appropriate for the CPS to exercise the Director's powers under section 6(2), either to continue the prosecution or to discontinue or stop it.

The key point is that when asked to do so, the CPS must make a decision on whether or not to take over a private prosecution.  The decision whether or not to take over a private prosecution should be made by the reviewing lawyer and endorsed/ratified by a Chief Crown Prosecutor (CCP) (or Deputy CCP (DCCP)) or relevant Head of Casework Divisions (HoD) (or their Deputy) and recorded in writing.

This guidance does not provide a specific format illustrating how this information should be recorded, but reviewing lawyers must include in the approach to their respective CCP, DCCP, HoD or Deputy HoD confirmation that this policy has been properly followed and the CCP/DCCP/HoD/DHoD has endorsed/ratified that decision.  The approach should be taken in line with the Full Code Test, as set out in the Code for Crown Prosecutors, and the reasons in respect of each offence as to whether the decision is to take over or not, and if so, whether to continue or discontinue (or contest or not for appeals).

Where the private prosecution requires extradition proceedings, prosecutors should follow the Legal Guidance on Extradition.

Where the CPS is asked to take over a case within section 6(2) that is not a private prosecution, because the case is being conducted by or on behalf of another prosecuting authority, this chapter does not apply. Refer instead to Relations with Other Prosecuting Agencies

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How the CPS may find out about a private prosecution

The private prosecutor is not under a duty to inform the CPS that a private prosecution has commenced. The CPS may therefore find out about a private prosecution in one of the following ways: 

  • where the private prosecutor, or a representative of the private prosecutor, asks the CPS to take over the prosecution; 
  • where the defendant, or a representative of the defendant, asks the CPS to take over the prosecution; 
  • where extradition is required and the Home Office (directly or indirectly) refers the private prosecutor, or a representative of the private prosecutor, to the CPS;
  • where a justices' clerk refers a private prosecution to the CPS under section 7(4) of the Prosecution of Offences Act 1985, because the prosecution has been withdrawn or unduly delayed and there does not appear to be any good reason for the withdrawal or the delay; 
  • where a judge sends a report to the CPS; 
  • where the CPS learns of the private prosecution in another way, for example, from a press report.

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When the CPS finds out about a private prosecution

Where the CPS receives a specific request to intervene in a private prosecution, you should contact the private prosecutor and invite them to supply you with a complete set of the papers they intend to use to support their prosecution. In addition, you should separately contact the defendant and invite them to let you have a copy of any papers which have been served on them by the private prosecutor and invite them further to provide you with any other information they are prepared to disclose which may assist you in the decision-making process. This may be information about their defence or about any relevant public interest considerations: the defendant is, of course, not obliged to provide anything to you at all but they should be given the opportunity to do so. You should notify each party that you have written separately to the other party.

You should ask both parties to supply any information within 14 days and you should advise each that you will base your decision to intervene on the material they choose to supply.

In all other cases, you should adopt the procedure above if, on the available information, there may be a need for the CPS to take over the prosecution.

Where the private prosecution in question is one brought by another public authority which is a signatory to the Prosecutors' Convention, then you should follow the principles of liaison set out in that document. See Relations with Other Prosecuting Agencies.

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Notification to the Special Crime and Counter Terrorism Division

Prosecutors should inform the Special Crime and Counter Terrorism Division (SCCTD) of any private prosecution that has been referred to the CPS before a decision is communicated to any of the involved parties. SCCTD must be informed of the relevant CPS Area, the court centre concerned and the proposed course of action in the case.

SCCTD will not review the original decision but will provide an assurance role to help ensure that the decision(s) made by the reviewing lawyer, endorsed/ratified by the CCP/DCCP/HoD, is compliant with this policy, including that the decision made was endorsed/ratified as required.  SCCTDs assurance role is important because decisions to take over or not to take over a private prosecution may be challenged in the courts.  The records which capture the decision must be sufficient to allow the CPS to deal with a judicial review, should one be commenced.

To assist SCCTD with its function, the reviewing lawyer should send the following information:

  • the CCP/DCCP/HoDs endorsement/ratification statement of the decision made, and their confirmation that this policy has been properly followed.  The endorsement should include confirmation that the decision has been made in line with the Full Code Test, and the reasons in respect of each offence, as to whether the decision is to take over or not and if so, then whether to continue or discontinue (or contest or not for appeals);
  • the timescales and broad chronology of the case, including its urgency with reasons for any delay. (this does not need to be a lengthy document);
  • summonses, charges or indictment(s);
  • confirmation that the representations and evidence were requested from the parties;
  • representations made by parties (if they have been received);
  • the charging decision, advice or review note as applicable.

The CPS Area or Casework Division should only proceed with their proposed course of action once SCCTD has confirmed with the reviewing lawyer that this policy has been applied.  SCCTDs role is to help ensure that this policy has been properly followed and that the records which capture the decision are sufficient to allow the CPS to deal with a judicial review, should one be commenced.

Where there is disagreement between the Area or Casework Division and the SCCTD regarding the way this policy has been followed or in relation to the decision documents, the Head of SCCTD should be contacted to resolve matters with the relevant CCP or HoD.

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When to take over and continue with the prosecution

The CPS should take over and continue with the prosecution if the papers clearly show that:

  • the evidential sufficiency stage of the Full Code Test is met; and
  • the public interest stage of the Full Code Test is met; and
  • there is a particular need for the CPS to take over the prosecution.

All three elements outlined above must be satisfied before the CPS takes over and continues with the prosecution.

The final consideration is designed to cover the situation where, for whatever reason, the investigative authorities with which the CPS usually deals have not brought the case to the CPS' attention and yet it is a case that merits the prosecution being conducted by a public prosecuting authority rather than by a private individual. This may be because, for example:

  • the offence is serious;
  • there are detailed disclosure issues to resolve;
  • the prosecution requires the disclosure of highly sensitive material; or,
  • the conduct of the prosecution involves applications for special measures or for witness anonymity.

This list is not exhaustive.

It is also necessary to consider whether or not the case is of a type that the CPS normally conducts following a police investigation.

All these and any other relevant factors must be weighed together in order to determine whether there is a particular need for the CPS to take over the prosecution. The existence of one factor does not necessarily mean that the prosecution must be taken over.

Where the offence relates to an alleged false claim of rape, the CPS should take over the case unless there are exceptional circumstances not to do so.

In cases where the CPS decides that taking over a private prosecution in order to continue with it is the appropriate course of action, then, unless there are exceptional circumstances, the CPS should write to both the private prosecutor and the defendant explaining the reasons for the decision.

Where the CPS decides to take over a private prosecution which involves extradition proceedings, the reviewing layer should proceed in accordance with the CPS Legal Guidance on Extradition.

Confiscation and Compensation

The case of R (Virgin Media Ltd) v Zinga,[2014] EWCA Crim 52 confirmed that a private prosecutor could institute confiscation proceedings by inviting the court to proceed under section 6 of the Proceeds of Crime Act 2002 (POCA). In the overwhelming majority of cases involving a private prosecutor, initiation of confiscation proceedings would also serve the public interest. 

The Court also confirmed that the Director may use the power under section 6(2) POA to take over a private prosecution when the court asks for assistance from the CPS in dealing with confiscation proceedings that involve compensation or other recompense from a defendant. Alternatively, the court may simply ask the CPS to assist the court.


The Court of Appeal anticipated difficulties in some cases where confiscation (in the public interest) and compensation (for the private prosecutors own benefit) were both sought. The Court would have a duty to carefully consider whether it required assistance, as it had no machinery of its own to carry out any inquiries. In such a case where the court asked for such assistance from the CPS, the Director would use the powers given to intervene in the proceedings either by taking over the proceedings or assisting the court.

When considering any request by a court for the Director to intervene, prosecutors should assess whether there is a need to take over the proceedings under s6(2)POA.  In some cases legal submissions on behalf of the Director might suffice.  However, where  a possible conflict of interest is identified, the case might need to be taken over at the confiscation stage by the Director.

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When to take over and discontinue the prosecution

A private prosecution should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met.

There may be particular circumstances which would affect either the evidential or public interest stage of the Full Code Test that are peculiar to the private prosecution.  Furthermore, there may be factors which would be damaging to the interests of justice if the private prosecution was not discontinued. Examples may include the following:

  • cases where the prosecution interferes with the investigation of another criminal offence;
  • cases where the prosecution interferes with the prosecution of another criminal charge;
  • cases where it can be said that the prosecution is vexatious (within the meaning of section 42 Supreme Court Act 1981, as amended by section 24 Prosecution of Offences Act 1985), or malicious (where the public prosecutor is satisfied that the prosecution is being undertaken on malicious grounds);
  • cases where the prosecuting authorities (including the police, the CPS or any other public prosecutor) have promised the defendant that he will not be prosecuted at all (a promise of immunity from prosecution): Turner v DPP (1979) 68 Cr. App. R. 70. This does not include cases where the prosecuting authorities have merely informed the defendant that they will not be bringing or continuing proceedings;
  • cases where the defendant has already been given either a simple caution or a conditional caution for the offence (which remains in being), and the simple caution was appropriately given in accordance with Home Office cautioning guidelines, or the giving of the conditional caution was in accordance with the Director's Guidance on Conditional Cautioning.

 
The Supreme Court in R (on the applcation of Gujra) v CPS [2012] UKSC  held that the CPS approach to taking over a private prosecution with the intention to discontinue it, unless the evidential stage of the Full Code Test was met, was lawful and did not frustrate or emasculate the objects underpinning the right to maintain a private prosecution in section 6 of the Prosecution of Offences Act 1985. The case settled the matter following a series of cases including - R v DPP ex parte Duckenfield, R v Same ex parte Murray, R v South Yorkshire Police Authority and Another ex parte Chief Constable of South Yorkshire Police [2000] 1 WLR 55, Raymond v Attorney General [1982] 75 Cr. App. R. 34.

In cases where it is decided that taking over a private prosecution in order to stop it is the appropriate course of action, then, unless there are exceptional circumstances, the CPS should write to the private prosecutor explaining the reasons for the decision.

The CPS will also give consideration to whether the case involves a victim as defined in the Victims Code as any such individual would be eligible to seek a review of the decision to stop the prosecution under the Victims Right to Review Scheme.

In such circumstances, prosecutors should write to the victim, who may or may not be the private prosecutor, notifying them of the decision to stop the prosecution, explaining the reasoning and advising them of their right to seek a review of the decision.  Contact details should be provided so that the victim can easily lodge a request for review if they choose to take this course of action.

Any request for a review should be dealt with in accordance with the policy and guidance issued in relation with the scheme.

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When not to take over a private prosecution

The CPS should not take over a private prosecution if the papers clearly show that:

  • the evidential sufficiency stage of the Full Code Test is met; and
  • the public interest stage of the Full Code Test is met; and
  • there is no particular need for the CPS to take over the prosecution (either to stop or continue with the prosecution).

[Prosecutors should refer to the examples provided in the sections above regarding when to take over and continue and when to take and discontinue a private prosecution].

In cases where it is decided that not taking over a private prosecution after receiving a specific request to intervene is the appropriate course of action, then, unless there are exceptional circumstances, the CPS should write to both the private prosecutor and the defendant explaining the reasons for the decision.

It should be noted that the Attorney General has the power to enter a nolle prosequi to stay proceedings in the Crown Court at any stage, and may receive such requests to do so in cases where the CPS has decided not to take over a private prosecution. In such circumstances, the Attorney General's Office will require a full briefing setting out the reasons for not taking over the private prosecution in order to stop it.

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Taking over proceedings after allocation or sending

It may be that the first time the CPS comes to learn of a private prosecution is when the case has been allocated/sent for trial. Allocation or sending indicates an acceptance by the court that the prosecution has established a prima facie case, unless there is a material weakening of the evidence which was available to the court at that stage.

In any private prosecution case that is drawn to the CPS attention at this stage, the reviewing lawyer should follow the principles set out in the sections above.

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Appeals against conviction

The CPS will normally take over proceedings in these circumstances since it is generally in the public interest that the integrity of a conviction is maintained.

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When to take over and not contest an appeal

The CPS will always take over and not contest an appeal if: 

  • There is clearly no case to answer. Since there has been a conviction, there will be few - if any - cases in this category. Where, however, the conviction is obviously unsafe, you should offer the appellate court whatever assistance can be given without resisting the appeal. 
  • The prosecution is clearly likely to damage the interests of justice. This ground will often not be relevant by the time a case reaches appeal stage, since the damage will already have been done at trial stage. It might be appropriate on occasion, however: for example, where there is an appeal against conviction on the ground that the prosecution have wrongly failed to disclose sensitive unused material.

The Victims Right to Review Scheme does not apply in such cases.  Victims do not have the right to seek a review of a decision not to contest an appeal.

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When not to take over an appeal

The CPS will not take over an appeal against conviction where it appears that the prosecution would not have passed the public interest stage of the Full Code Test.  To do so would mean that the CPS would be seeking to uphold a conviction that should not have been obtained.  The CPS could not concede the appeal on the ground that a prosecution had not been needed in the public interest, since the question of the public interest is not one that the appellate court can consider.

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Appeals by the private prosecutor

If there is an appeal by the prosecutor and the CPS is asked to take over the appeal, you should do so if an important point of law is involved, but not otherwise.

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Police Officers

Where a private prosecution is commenced by a police officer who is the victim, the principles set out in this guidance will apply.

If a police officer, not being the victim, commences a private prosecution in order to challenge a police or a CPS decision, the CPS will normally take over the prosecution as it likely to be in the interests of justice to do so.  Following review, the prosecution would be discontinued or stopped if the Full Code Test was not satisfied.

The CPS must ensure that any decision is taken in the full knowledge of all that has passed between the police and the defendant at the time when the police were originally investigating the alleged offence. The prosecutor will want to know, for example, whether the police indicated to the defendant that there would be no prosecution.

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Re-institution of Proceedings

The CPS policy about when to re-institute proceedings is summarised at paragraphs 10.1 and 10.2 of the Code for Crown Prosecutors and is based on an undertaking given to the House of Commons on 29 March 1993 by the Attorney General.  See the legal guidance chapter on Reconsidering a Prosecution Decision for further information.  The undertaking does not apply to private prosecutors, who are therefore generally free to start a private prosecution after a decision by the police or CPS not to prosecute or to stop a prosecution.

The CPS will not, therefore, take over a private prosecution simply because it was started after the police had decided not to prosecute, or the CPS had stopped its prosecution.

There are however, a small number of circumstances where, the CPS will take over a private prosecution and will then apply the re-institution guidelines - as well as the Full Code Test - to decide whether or not to continue the prosecution.  They are as follows:

  • where a decision has been taken by the CPS to discontinue or not proceed with a prosecution on evidential grounds, where a subsequent review of the case papers (where there is no fresh evidence) leads to the conclusion that original decision was wrong and the evidence does afford a realistic prospect of conviction;
  • where a decision has been taken by the CPS to discontinue or not proceed with a prosecution on public interest grounds where a subsequent review of the case papers leads to the conclusion that the original decision was wrong;
  • where the defendant was conditionally cautioned or cautioned for the offence, but the conditional caution or caution was wrongly given in that the criteria for a caution had not been met or in that the decision to caution was one that no reasonable person could have taken: in such cases, it is appropriate to cancel the conditional caution or caution, effectively "wiping the slate clean" and re-start the proceedings; or,
  • where the defendant was conditionally cautioned or cautioned for the offence and the conditional caution or caution was given on the basis of false information about the offence, or the defendant, which was provided or procured by the defendant.

The CPS will consider whether it is appropriate to take over a private prosecution and then apply the re-institution guidelines (as well as the Full Code Test) where a decision has been taken by the CPS to discontinue or not proceed with a prosecution where there was insufficient evidence, and a subsequent review of the case based on fresh evidence leads to the conclusion that there is a realistic prospect of conviction. 

There may also be circumstances where it has been properly decided that it is not in the public interest for the CPS to bring or continue a prosecution having considered the facts of the case, but it may be appropriate for another private prosecutor to do so.

In the case of Scopelight Ltd v Chief of Police for Northumbria and the Federation Against Copyright Theft (FACT) Ltd [2009] EWCA Civ 1156 the CPS had decided it would not be in the public interest to bring a prosecution.  The Court of Appeal (Civil Division) concluded that there was no basis to justify the proposition that a decision by the CPS not to prosecute conclusively determined that a prosecution was not in the public interest.  It was well recognised that in addition to the CPS, may other bodies, public and private, investigated and prosecuted crime.  This approach was referred to with apparent approval by the Supreme Court in the case of R (on the application of Gujra) v CPS [2012] UKSC 52 [para 31].

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DPP Consent Cases

If an offence requires the DPPs consent to prosecute, the private prosecutor must seek that consent.  If the proposed prosecution passes the Full Code Test, the CPS will take over the prosecution.  Conversely, if the proposed prosecution fails the Test, the DPPs consent to prosecute will not be given.

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CPS Disclosure of Material to Third Parties

A private prosecutor, or an intending private prosecutor, or a defendant in a private prosecution, will sometimes ask for the disclosure of documents or information by the CPS. The rules about CPS disclosure of material to third parties direct the way the CPS deals with this kind of request.

The right to bring a private prosecution does not confer on an intending private prosecutor a right of access to the statements, photographs, reports or other documents held by the CPS: R v DPP ex parte Hallas [1988] 87 Cr. App. R. 340. Nor would a defendant have a right to obtain documents from the CPS.

Those who provide material for the CPS are entitled to confidentiality in respect of such material, as it is not in the public domain: Taylor & Another v Director of the Serious Fraud Office and Others [1999] 2 AC 177.

Although the general rule is that the CPS should make disclosure whenever it is in the interests of justice to do so, it is unlikely to be in the interests of justice for the CPS to disclose case material to a potential private prosecutor if that material has been reviewed and is not in itself considered to be sufficient to pass the evidential stage of the Full Code Test.  A possible exception to this is if the private prosecutor has separate evidence which, taken with that held by the CPS, may constitute sufficient evidence to provide a realistic prospect of conviction. However the CPS should consider the principles set out in the Disclosure Manual and the legal guidance on Disclosure of Material to Third Parties when considering voluntary disclosure of documents and information held by the CPS, in particular, the names and addresses of witnesses.

Any voluntary disclosure should be even handed between the parties and therefore any documents supplied to the private prosecutor at his or her request should also be supplied to the defendant and vice versa.

In relation to the CPS providing witness statements and reason for decisions see Guidance on Requests for witness statements from CPS staff.

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Summonses for material held by the CPS

Once there has been an allocation or transfer, the Crown Court may grant a private prosecutor a witness summons to secure the production of relevant material from the police in order that the private prosecutor should be able to comply with his disclosure obligation to the defence: R v Pawsey [1989] Criminal LR 152.

There is no reason in principle why such a summons should not be granted after committal or transfer in respect of material held by the CPS and there is no reason why a magistrates' court should not grant a witness summons to secure the production of material relevant to a summary trial.

Where the CPS does not possess either the originals or copies of the witness statements or other documents requested, the CPS should refer the enquirer to the person or body who does or who might possess what is sought; that will usually be the police. That will be the end of CPS involvement. The CPS must not, for example, mediate with the police on behalf of an enquirer, and there is no power to direct the police as to what they should do. That does not  prevent the CPS from advising the police on a point of disclosure if asked to do so; see Guidance on Disclosure of Material to Third Parties.

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Prosecutor's Duty to Disclose Unused Material

If the CPS takes over a private prosecution, the reviewing lawyer will have the usual prosecutor's duty to disclose unused material to the defence. Where the CPS has not taken over a private prosecution, the private prosecutor is under that duty; link to the Disclosure Manual.

Difficulties for the CPS will arise where the CPS has not taken over a private prosecution but is aware of the private prosecution and is also aware that material or evidence or information exists but the private prosecutor does not possess it. The CPS may not be able to disclose this information - either because the CPS is not in possession of it, or there are public interest immunity (PII), or other considerations, that prevent disclosure.  If the CPS is, or can be, in possession of the material, the CPS must do one of two things:

  • notify the private prosecutor and the defendant of the existence of the material and supply it on request if it is right to do so; or
  • if the material is too sensitive for the first course of action, the CPS must take over the private prosecution.


In any case in which the CPS is made aware of material which has not been disclosed to the defendant, and which the CPS cannot ensure is disclosed, which would tend to exonerate or materially assist the defence, the CPS must take over the private prosecution.

When the CPS takes over a private prosecution because of difficulties over disclosure of material to the defendant, the CPS will review the case in accordance with the Full Code Test and in the light of any disclosure issues. It may be useful to bear in mind that an application to the court may resolve a disclosure issue.

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Misconduct by the Private Prosecutor

On occasions when the CPS examine papers in order to decide whether or not to take over the prosecution, and decide to allow the private prosecution to continue, prosecutors may come across misconduct by the private prosecutor.  An example would be a failure by the private prosecutor to disclose relevant evidence to the defendant or a failure to disclose unused material in his possession to the defendant. In these cases, the CPS must advise the private prosecutor of his or her disclosure obligation.

If, after asking the private prosecutor to provide details of items disclosed, the CPS cannot be satisfied that the private prosecutor has made proper disclosure, the reviewing lawyer must inform the defendant.  Since the private prosecutor has the unused material in his or her possession, the defendant should be able to obtain disclosure through an order of the court.

In general, the CPS will not take over a private prosecution because of misconduct or alleged misconduct by the private prosecutor. It is not the role of the CPS to discipline private prosecutors but rather  it is for the courts to control private prosecutors. Where a court or a defendant asks the CPS to take over the case because of misconduct by the private prosecutor, the CPS will review the case as set out in earlier sections of this guidance.

There will be occasions when it would be appropriate for the reviewing lawyer to copy to other parties and the court any correspondence that the CPS has had in the case. 

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Application for a Summons by a Private Prosecutor, where the CPS has already started proceedings

When the CPS is already pursuing what it considers to be the appropriate charges, a magistrate should be slow, in the absence of any special circumstances, to issue a summons for a more serious charge on the application of a private prosecutor.  Such a course could well  be oppressive; the possibility of the DPP taking over the private prosecution is a relevant factor - R v Tower Bridge Metropolitan Stipendiary Magistrate Ex Parte Chaudhry [1993] 99 Cr. App. R. 170.

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Procedure

 If it appears that the case might be one that the CPS should take over, the private prosecutor should be asked to pass the evidence and other documents to the CPS so that a decision whether the prosecution should be taken over can be made.  The police should also be asked if they have  information or evidence that would assist.

In practice it is unlikely that private prosecutors will refuse to hand over papers. But, if this does happen, the CPS will not be able to compel the private prosecutor to do so unless the CPS takes over the private prosecution. The law is summarised in the guidance Disclosure of Material to Third Parties section (with the difference that it is the intending prosecutor who is seeking documents from the CPS; the courts are likely to apply the same principles if the CPS is seeking documents from a private prosecutor).

Sometimes the papers will not contain enough evidence or information for the CPS to be able to decide whether or not to take over the prosecution. If this happens, the CPS will ask the police to investigate the case if it seems that further investigation is necessary.

However, the CPS cannot direct the police to carry out an investigation.  If the police do not immediately agree to investigate, the reviewing lawyer should give the police up to 14 days in which to inform the CPS whether they will investigate.

If the police decline to investigate or to make a decision whether they intend to do so, then the CPS will need to make the decision based on the information contained within the papers already held.

A case is taken over by writing to the parties and the court, setting out the powers to take over a case and then stating that the CPS is taking over the case.  Normal discontinuance procedures apply if that is the decision in the case.  If the CPS decides that the case will not be taken over,  the reviewing lawyer should inform all parties and the court of the decision.

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