Public consultation on the Code for Crown Prosecutors

This consultation is now open

Consultation content

Consultation questions

We would welcome your views on the draft revisions to the Code, in particular on questions 1-6 below. 

You do not need to answer every question. Responses may focus on the questions or issues that are most relevant to you or your organisation.

Disproportionality - bias

• The CPS previously stated that we would amend the Code to address disproportionality in charging decisions: CPS sets out Action Plan to tackle disproportionality in charging decisions | The Crown Prosecution Service. 
• We have revised the text relating to protected characteristics at paragraph 2.8, to more clearly focus prosecutors’ minds on preventing any bias or personal views from influencing charging decisions. 
• Paragraph 2.8 is necessarily concise, as the Code only provides high-level guidance and cannot address in detail all CPS guidance for prosecutors on bias. However, pursuant to its Action Plan, the CPS is implementing a range of measures to address any bias in decision making. These include:
  • The delivery of disproportionality case strategy packs to support prosecutors to identify and address potential bias, assumptions and disproportionality in casework, helping to improve decision-making, case strategy and overall casework quality.
  • The implementation of a homicide and attempted homicide joint enterprise monitoring scheme to improve understanding of how joint enterprise is applied in prosecution decision-making, supporting transparency, consistency and the identification of emerging themes or issues.
  • The launch and analysis of the consultation on “gangs” prosecution guidance and music in evidence, supporting improvements to guidance in a sensitive area linked to racial disproportionality.
  • The establishment of the Joint NPCC-CPS Disproportionality Board, supporting joint leadership with policing on shared race disproportionality priorities.

Question 1: Do you have any views on the text on bias at paragraph 2.8?

Timing of the charging decision and use of action plans

• We have clarified that the Full Code Test may be applied prior to outstanding lines of reasonable enquiry being completed, if the prosecutor is satisfied that any further evidence or material is unlikely to affect the application of the Full Code Test, whether in favour of or against a prosecution (paragraph 4.3). We have also clarified the correct use of pre-charge and post-charge action plans: a charging decision should only be subject to a pre-charge action plan where the Full Code Test cannot be applied without the evidence or material that is sought; whereas a post-charge action plan should be used for other evidence or material that is required (paragraph 4.4). The intention is to find the right balance between premature charging decisions and decisions that may be delayed unnecessarily. 

Question 2: Do you have any views on the clarification of the timing of a charging decision and the appropriate use of action plans at paragraphs 4.3-4.4?

The public interest – the circumstances of the victim

• We have created a new section on the circumstances of the victim, which indicates that prosecutors should take into account their circumstances, their views, and any risk to them. 
• We have therefore broadened the views of the victim on the impact of the offence to “any views” provided by the victim, although we do not suggest that victims’ views are routinely sought other than where required by the Victims’ Code, such as in relation to an out of court resolution. 
• The Code still makes clear that the CPS does not act for victims but simply considers their views when making an overall assessment of the public interest. 

Question 3: Do you agree that prosecutors should take into account any views provided by the victim, their circumstances and any risk to them, when making a charging decision? (paragraph 4.18, Question 1, bullet 1)

The Threshold Test 

• In limited circumstances, where the Full Code Test is not met, the Threshold Test may be applied to charge a suspect. Any charge under the Threshold Test must be kept under review and the Full Code Test must be applied as soon as the anticipated further evidence or material is received. Currently, the Code indicates that in Crown Court cases this should usually be before the formal service of the prosecution case. We have revised this, to bring forward the deadline to before the indictment is lodged. We further indicate that if the evidence or material cannot be obtained within this timescale or, if required, following a short adjournment, it may be necessary to discontinue the case. (Proceedings may be reinstituted at a later date, if the further evidence or material is received.)

Question 4: In cases charged under the Threshold Test, do you agree with bringing forward the deadline for the application of the Full Code Test to before the indictment is lodged? (paragraph 6.11)

Addressing the Crown Court backlog – Selection of charges

• In line with recent amendments to CPS guidance, we are encouraging prosecutors to consider whether offending is more suitably dealt with in the magistrates’ court than the Crown Court, providing that the charge reflects the seriousness of the offence and gives the court sufficient sentencing powers. Revisions have been made to the section on The Selection of Charges, so that prosecutors may consider deterrent effect, cost and delay when selecting charges. 

Question 5: Do you have any views on the approach or the text at paragraph 7.2, which allows prosecutors to consider deterrent effect, cost and delay when selecting charges?

Proceeds of Crime and non-prosecution powers

• Guidance is provided throughout the Code on the use of non-prosecution powers, such as Civil Recovery, Serious Crime Prevention Orders and Deferred Prosecution Agreements. Depending on the power, these may be used as an alternative or in addition to a prosecution. This reflects the increasing importance of non-prosecution work for the CPS.
• We have also amended the sections on the Selection of Charges and Accepting Guilty Pleas to encourage prosecutors to think about whether the suspect has benefitted only from particular criminal conduct or from general criminal conduct, to ensure that the charge selected or the plea offered would trigger the wider confiscation regime, where appropriate.

Question 6: Do you have any views on the inclusion of text, or on any of the specific text, on non-prosecution powers and proceedings in the Code? (paragraphs 1.4, 2.5, 3.1, 4.5, 4.7 and 4.13) 

Other proposed revisions to the Code 

These include:

Rule of law and the status of the suspect, defendant, victim or witness

• We have introduced new paragraphs related to the rule of law. Paragraph 2.1 explains how the rule of law is upheld by the CPS and sets out the principle that no one is above the law and that the law applies equally to everyone. Paragraph 2.10 clarifies that the Code principles must be applied in the same way in all cases, regardless of the social status, influence, wealth, power, popularity, or fame of the suspect, defendant, victim or any witness, or of any cause that they may promote or support. 

The public interest

• We have made a number of changes to the public interest stage of the Full Code test, such as:
• Making clear that the options available to a prosecutor when reviewing a case are: prosecution; out-of-court resolution; CPS non-prosecution proceedings; referral to a relevant public body; or no further action (paragraphs 4.10-4.14). 
• Prosecutors should consider whether a prosecution may lead to an unjust outcome where a suspect was under 18 at the time of the offence but will be 18 or over by the date of any conviction and sentence, and so sentenced as an adult, particularly where there will be a long period between the offence and any sentence (paragraph 4.18, Question 3, bullet 7).

Question 7: Do you have any other views on the draft Code?