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Decision to Charge

Once the Police have completed their investigations, they will refer the case to the Crown Prosecution Service for advice on how to proceed. We will then make a decision on whether a suspect should be charged, and what that charge should be.

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The Role of The Crown Prosecution Service

The Crown Prosecution Service is the government department responsible for prosecuting criminal cases investigated by the police in England and Wales.

As the principal prosecuting authority in England and Wales, we are responsible for:

  • advising the police on cases for possible prosecution
  • reviewing cases submitted by the police
  • determining any charges in more serious or complex cases
  • preparing cases for court
  • presenting cases at court

Find out more about the role of the Crown Prosecution Service

DPP launches final guidelines for prosecutors on cases affecting the media following public consultation

13/09/2012

Following a public consultation, Keir Starmer QC, the Director of Public Prosecutions (DPP), has today published final guidelines on the approach prosecutors should take when assessing the public interest in cases affecting the media.

The guidelines will be relevant when prosecutors are considering whether to charge journalists - or those who interact with journalists - with criminal offences that may have been committed in the course of their work as journalists.

Mr Starmer said: "The public consultation on the guidelines has been a very useful exercise. The purpose of the guidelines is to strike the right balance between the important public interest in a free press and the need to prosecute serious wrongdoing. That is not an easy exercise, but I am pleased that the overwhelming majority of responses supported the approach taken in the guidelines, in particular the requirement that prosecutors consider whether the public interest served by the journalistic conduct in question outweighs the overall criminality before bringing criminal proceedings.

"These guidelines will ensure a consistent approach by prosecutors while, at the same time, providing transparency as to the approach the CPS will take when considering these important and often finely balanced cases.

"During the consultation period I have held meetings with the Press Complaints Commission, Ofcom and the Information Commissioner's Office in an attempt to build consensus around the guidelines and I am pleased to report that Lord Hunt, Ed Richards and Christopher Graham all support the guidelines."

The guidelines

Changes to the guidelines incorporated following feedback include:

  • Asking prosecutors to consider what information was available to the journalist at the start of their investigation in relation to the motivation of the suspect
  • More detail about what might be considered as an "important matter of public debate" with examples of 'serious impropriety', 'significant unethical conduct' and 'significant incompetence'
  • More detail on the section about privacy. 

Responses and feedback from the public consultation came from representatives of both the media and victims, and from legal and academic experts. 

Mr Starmer added: "A number of respondents suggested that more detail about what was meant by "an important matter of public debate" should be included in the guidelines and we have now added three specific examples, namely serious impropriety, significant unethical conduct and significant incompetence. But, I would like to emphasise that these are only examples and that each case must be considered on its individual facts and merits." 

Considering the evidence

As in all cases, prosecutors must consider whether or not there is sufficient evidence for a realistic prospect of conviction, and if so, then whether it is in the public interest to prosecute. That will require prosecutors to consider any defences that may be advanced.

Asking whether the public interest served by the conduct in question outweighs the overall criminality

If there is sufficient evidence for a realistic prospect of conviction, prosecutors are asked to consider the critical question of whether the public interest served by the conduct in question outweighs the overall criminality. If the answer is yes, it is less likely that a prosecution will be required. 

This is a three stage process: 

  1. assessing the public interest served by the conduct in question;
  2. assessing the overall criminality; and then
  3. weighing these two considerations.

 

In looking at the first stage, prosecutors are asked to consider factors, including conduct which is capable of:  

(a) disclosing that a criminal offence has been committed, is being committed, or is likely to be committed

(b) disclosing that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which s/he is subject

(c) disclosing that a miscarriage of justice has occurred, is occurring or is likely to occur. 

(d) raising or contributing to an important matter of public debate. There is no exhaustive definition of an important matter of public debate, but examples include public debate about serious impropriety, significant unethical conduct and significant incompetence, which affects the public.

(e) disclosing that anything falling within any one of the above is being, or is likely to be concealed. 

 

When assessing the overall criminality in the second stage, non-exhaustive factors likely to be relevant: 

(a)   The impact on the victim(s) of the conduct in question, including the consequences for the victim(s)

(b)   Whether the victim was under 18 or in a vulnerable position

(c)   The overall loss and damage caused by the conduct in question

(d)   Whether the conduct was part of a repeated or routine pattern of behaviour or likely to continue

(e)   Whether there was any element of corruption in the conduct in question

(f)     Whether the conduct in question included the use of threats, harassment or intimidation

(g)   The impact on any course of justice, for example whether a criminal investigation or proceedings may have been put in jeopardy

(h)   The motivation of the suspect insofar as it can be ascertained (examples might range from malice or financial gain at one extreme to a belief that the conduct would be in the public interest at the other, taking into account the information available to the suspect at the time)

(i)    Whether the public interest in question could equally well have been served by some lawful means having regard to all the circumstances in the particular case.

 

Weighing the public interest served by the conduct against the overall criminality is not an arithmetical exercise of adding up factors on each side, but rather prosecutors are asked to consider each case on its own facts. 

Rt Hon Lord Hunt of Wirral has said the following: "Guidance from the Crown Prosecution Service in assessing the public interest in cases affecting the media is most welcome. I very much hope this will help to generate a greater understanding and appreciation of the public interest, and also of the need to take it into account in editorial decision-making." 

Christopher Graham of the Information Commissioner's Office has said: "The Commissioner welcomes the guidelines and considers that they will help to ensure a consistent approach in assessing the public interest in cases affecting the media.

Ends

Notes to Editors

  1. The final guidelines are available to view on this website.
  2. The CPS has looked at all current prosecutions in this area and considers that all charging decisions made under the interim guidelines are consistent with the final guidance. 
  3. It is important to distinguish between the public interest served by freedom of expression and the right to receive and impart information; and the separate question of whether a prosecution is in the public interest, which is the second stage of the Code for Crown Prosecutors as followed by prosecutors. 
  4. No journalist is above the law and no immunity can be given from prosecution. 
  5. This does not cover any journalist's coverage of court proceedings, or conduct outside of their work. 
  6. The Code for Crown Prosecutors, used by the CPS in all cases, asks lawyers to consider first whether there is sufficient evidence for a realistic prospect of conviction, and if so, then whether it is in the public interest to bring a prosecution. The Code is available at www.cps.gov.uk/code.  
  7. The public consultation was launched on 18 April 2012 and closed on 10 July 2012. The DPP undertook to produce this policy when giving evidence on 8 February 2012 to the inquiry being conducted by Lord Justice Leveson into the Culture, Practices and Ethics of the Press.
  8. For media enquiries call the CPS Press Office on 020 3357 0906; Out of Hours Pager 07699 781 926
  9. The DPP has set out what the public can expect from the CPS in the Core Quality Standards document published in March 2010.
  10. The CPS consists of 13 Areas in total, each headed by a Chief Crown Prosecutor (CCP). In addition, there are three specialised national divisions: Central Fraud Division, Special Crime and Counter Terrorism, and Organised Crime. In 2011-2012, The Department for Environment, Food and Rural Affairs (Defra), Department for Work and Pensions (DWP) and Department of Health (DoH) prosecution functions were transferred to the CPS. A telephone service, CPS Direct, provides out-of-hours advice and decisions to police officers across England and Wales.
  11. In 2010-2011 the CPS employed around 7,745 people and prosecuted 957,881 cases with 116,898 of these in the Crown Court, and the remaining 840,983 in the magistrates' courts. Of those we prosecuted, 93,106 defendants were convicted in the Crown Court and 727,491 in the magistrates' courts. In total 86% of cases prosecuted resulted in a conviction. Further information can be found on the CPS website.
  12. The CPS, together with ACPO and media representatives, has developed a Protocol for the release of prosecution material to the media. This sets out the type of prosecution material that will normally be released, or considered for release, together with the factors we will take into account when considering requests. Read the Protocol for the release of prosecution material to the media.