The evidential test

There must be enough evidence to provide a 'realistic prospect of conviction' against the defendant. 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 and acting in accordance with the law, is more likely than not to convict the defendant of the alleged charge. This is a different test from the one that the criminal courts must apply. Magistrates or a jury should only convict the defendant if they are sure that he or she is guilty.

When deciding whether there is enough evidence to prosecute, prosecutors must consider whether the evidence can be used in court and whether it is reliable. This means that they must assess the quality of the evidence from all witnesses before reaching a decision. Where it is considered that it would be helpful in assessing the reliability of a witness' evidence or in better understanding complex evidence, an appropriately trained and authorised prosecutor should conduct a pre-trial interview with the witness.A decision to drop a case does not mean that the prosecutor has decided to believe one witness and not believe another.

If there is not a realistic prospect of conviction, the case must not go ahead, no matter how serious or sensitive it may be.