4. The Full Code Test

1. The Full Code Test has two stages: (i) the evidential stage; followed by (ii) the public interest stage.
2. In the vast majority of cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed. However, there will be cases where it is clear, prior to the collection and consideration of all the likely evidence, that the public interest does not require a prosecution. In these rare instances, prosecutors may decide that the case should not proceed further.
3. Prosecutors should only take such a decision when they are satisfied that the broad extent of the criminality has been determined and that they are able to make a fully informed assessment of the public interest. If prosecutors do not have sufficient information to take such a decision, the investigation should proceed and a decision taken later in accordance with the Full Code Test set out in this section.
4. Prosecutors must follow any guidance issued by the DPP to ensure that decisions in these cases are appropriate and correct.

   The Evidential Stage

5. Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.
6. A realistic prospect of conviction is an objective test based solely upon the prosecutor's assessment of the evidence and any information that he or she has about the defence that might be put forward by the suspect. It means that an objective, impartial and reasonable 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 charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.
7. When deciding whether there is sufficient evidence to prosecute, prosecutors must consider whether the evidence can be used and whether it is reliable. There will be many cases in which the evidence does not give any cause for concern. But there will also be cases in which the evidence may not be as strong as it first appears. In particular, prosecutors will need to consider the following issues.

   Can the evidence be used in court?

   1. Is it likely that the evidence will be excluded by the court? There are legal rules that might mean that evidence which seems relevant cannot be given at a trial. For example, is it likely that the evidence will be excluded because of the way in which it was obtained?
   2. Is the evidence hearsay? If so, is the court likely to allow it to be presented under any of the exceptions which permit such evidence to be given in court?
   3. Does the evidence relate to the bad character of the suspect? If so, is the court likely to allow it to be presented?

      Is the evidence reliable?

   4. What explanation has the suspect given? Is a court likely to find it credible in the light of the evidence as a whole? Does the evidence support an innocent explanation?
   5. Is there evidence which might support or detract from the reliability of a confession? Is its reliability affected by factors such as the suspect's level of understanding?
   6. Is the identification of the suspect likely to be questioned? Is the evidence of his or her identity strong enough? Have the appropriate identification procedures been carried out? If not, why not? Will any failure to hold the appropriate identification procedures lead to the evidence of identification being excluded?
   7. Are there concerns over the accuracy, reliability or credibility of the evidence of any witness?
   8. Is there further evidence which the police or other investigators should reasonably be asked to find which may support or undermine the account of the witness?
   9. Does any witness have any motive that may affect his or her attitude to the case?
   10. Does any witness have a relevant previous conviction or out-of-court disposal which may affect his or her credibility?
   11. Is there any further evidence that could be obtained that would support the integrity of evidence already obtained?
8. 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 in accordance with the relevant Code of Practice.
9. Prosecutors should not ignore evidence because they are not sure that it can be used or is reliable. But they should look closely at it when deciding if there is a realistic prospect of conviction.

   The Public Interest Stage

10. In 1951, Sir Hartley Shawcross, who was then Attorney General, made the classic statement on public interest: "[i]t has never been the rule in this country - I hope it never will be - that suspected criminal offences must automatically be the subject of prosecution". He added that there should be a prosecution: "wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest" (House of Commons Debates, Volume 483, 29 January 1951). This approach has been endorsed by Attorneys General ever since.
11. Accordingly, where there is sufficient evidence to justify a prosecution or to offer an out-of-court disposal, prosecutors must go on to consider whether a prosecution is required in the public interest.
12. A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal (see section 7). The more serious the offence or the offender's record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest.
13. Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and for those factors to be put to the court for consideration when sentence is passed.
14. The absence of a factor does not necessarily mean that it should be taken as a factor tending in the opposite direction. For example, just because the offence was not "carried out by a group" does not transform the "factor tending in favour of a prosecution" into a "factor tending against prosecution".
15. Some common public interest factors which should be considered when deciding on the most appropriate course of action to take are listed below. The following lists of public interest factors are not exhaustive and each case must be considered on its own facts and on its own merits.

    Some common public interest factors tending in favour of prosecution

16. A prosecution is more likely to be required if:
    1. a conviction is likely to result in a significant sentence;
    2. a conviction is likely to result in an order of the court in excess of that which a prosecutor is able to secure through a conditional caution;
    3. the offence involved the use of a weapon or the threat of violence;
    4. the offence was committed against a person serving the public (for example, a member of the emergency services; a police or prison officer; a health or social welfare professional; or a provider of public transport);
    5. the offence was premeditated;
    6. the offence was carried out by a group;
    7. the offence was committed in the presence of, or in close proximity to, a child;
    8. the offence was motivated by any form of discrimination against the victim's ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation or gender identity; or the suspect demonstrated hostility towards the victim based on any of those characteristics;
    9. the offence was committed in order to facilitate more serious offending;
    10. the victim of the offence was in a vulnerable situation and the suspect took advantage of this;
    11. there was an element of corruption of the victim in the way the offence was committed;
    12. there was a marked difference in the ages of the suspect and the victim and the suspect took advantage of this;
    13. there was a marked difference in the levels of understanding of the suspect and the victim and the suspect took advantage of this;
    14. the suspect was in a position of authority or trust and he or she took advantage of this;
    15. the suspect was a ringleader or an organiser of the offence;
    16. the suspect's previous convictions or the previous out-of-court disposals which he or she has received are relevant to the present offence;
    17. the suspect is alleged to have committed the offence in breach of an order of the court;
    18. a prosecution would have a significant positive impact on maintaining community confidence;
    19. there are grounds for believing that the offence is likely to be continued or repeated.

    Some common public interest factors tending against prosecution

17. A prosecution is less likely to be required if:
    1. the court is likely to impose a nominal penalty;
    2. the seriousness and the consequences of the offending can be appropriately dealt with by an out-of-court disposal which the suspect accepts and with which he or she complies (see section 7);
    3. the suspect has been subject to any appropriate regulatory proceedings, or any punitive or relevant civil penalty which remains in place or which has been satisfactorily discharged, which adequately addresses the seriousness of the offending and any breach of trust involved;
    4. the offence was committed as a result of a genuine mistake or misunderstanding;
    5. the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement;
    6. there has been a long delay between the offence taking place and the date of the trial, unless:
       • the offence is serious;
       • the delay has been caused wholly or in part by the suspect;
       • the offence has only recently come to light;
       • the complexity of the offence has meant that there has been a long investigation; or
       • new investigative techniques have been used to re-examine previously unsolved crimes and, as a result, a suspect has been identified;
    7. a prosecution is likely to have an adverse effect on the victim's physical or mental health, always bearing in mind the seriousness of the offence and the views of the victim about the effect of a prosecution on his or her physical or mental health;
    8. the suspect played a minor role in the commission of the offence;
    9. the suspect has put right the loss or harm that was caused (but a suspect must not avoid prosecution or an out-of-court disposal solely because he or she pays compensation or repays the sum of money he or she unlawfully obtained);
    10. the suspect is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is a real possibility that it may be repeated. Prosecutors apply Home Office guidelines about how to deal with mentally disordered offenders and must balance a suspect's mental or physical ill health with the need to safeguard the public or those providing care services to such persons;
    11. a prosecution may require details to be made public that could harm sources of information, international relations or national security.

    The views of victims or their families

18. In deciding whether a prosecution is required in the public interest, prosecutors should take into account any views expressed by the victim regarding the impact that the offence has had. In appropriate cases, for example, a case of homicide or where the victim is a child or an adult who lacks capacity as defined by the Mental Capacity Act 2005, prosecutors should take into account any views expressed by the victim's family.
19. However, the prosecution service does not act for victims or their families in the same way as solicitors act for their clients, and prosecutors must form an overall view of the public interest.
20. Where prosecutors have a responsibility to explain their decision to the victim, for example, when they stop a case or substantially alter the charge in a case, they must comply with the Code of Practice for Victims of Crime and all relevant CPS Guidance. Prosecutors must follow any agreed procedures, including abiding by any time period within which such decisions should be notified to the victim.