Instructions for Prosecuting Advocates
These instructions are incorporated into every prosecution brief.
Any Advocate prosecuting on behalf of the Crown Prosecution Service will be expected to be familiar with the material in this document and to apply these instructions.
- Acceptance of Pleas
- Custody Time Limits
- Disclosure/Unused Material
- Disclosure Management Document
- DNA Guidance
- Domestic Abuse
- Expert Witnesses
- Freedom of Information Act 2000
- Homophobic and Transphobic Offences
- Disability Hate Crime Offences
- Media Reporting
- Prosecution Rights of Appeal
- Racially and Religiously Aggravated Offences
- Rape and Serious Sexual Offences
- Unduly Lenient Sentences
- Video-Recorded Interviews with Vulnerable & Significant Witnesses
- Witness Issues including Child Witnesses
1.1 The Attorney General's Guidelines entitled The Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise, 2012, govern the acceptance of pleas and complement section 9 of the Code for Crown Prosecutors. Prosecuting advocates must comply with these Guidelines and section 9 of the Code.
1.2 Prosecuting advocates must also comply with Criminal Practice Direction 2015, Division VII - Sentencing. Paragraphs B.1 - B.27 deal with the determination of the factual basis of sentence and are divided into a number of scenarios.
1.3 No pleas (or a basis) should be accepted until the prosecutor has properly considered and recorded in writing:
- The implications for sentence, with reference to relevant guidelines or case law; and
- The full rationale behind any decision not to present the prosecution case at its highest.
1.4 Paragraph B3 of the Attorney General's Guidelines addresses consultation with the victim or the victim’s family and should be followed whenever practicable.
1.5 Particular attention is drawn to section "C" of the Guidelines, which deals with the basis of plea. It emphasises that:
- Defence advocates should commit the basis of the plea to writing. This must be done in all cases save for those in which the defendant has indicated that the guilty plea has been or will be tendered on the basis of the prosecution case.
- The prosecuting advocate should show the prosecuting authority any written basis of plea and agree with them the basis on which the case will be opened to the court. If, as may well be the case, the plea basis has implications for sentencing or ancillary orders, such differences must be accurately reflected in the written record before it is shown to the prosecuting authority.
- Where the basis of the plea is agreed, the prosecutor should endorse the document which should then be lodged with the court (a copy being retained with the brief or prosecution file).
- Where the prosecuting advocate takes issue with all or part of the written basis of the plea, the points of disagreement should be indicated on the document, before it is handed into the court. The prosecution must indicate whether or not they submit a Newton Hearing is necessary.
- The court should be told where a derogatory reference to a victim, witness or third party is not accepted, even though there may be no effect on sentence.
- Where a defendant puts forward assertions of fact which are outside the scope of the prosecuting advocate’s knowledge (for example, an assertion of the defendant’s state of mind at the time of the offence), prosecutors should invite the court not to accept any such assertion without hearing from the defendant on oath, so that the account can be tested in cross examination: see paragraph B.12 of the Criminal Practice Direction.
- Prosecuting advocates should always ensure that the defence advocate is aware of the basis on which the plea is accepted by the prosecution and the way in which the prosecution case will be opened to the court.
Breach of Bail
2.1 If a prosecuting advocate is dealing with a Bail Act offence (which may occur if the defendant commits another offence outside the jurisdiction of the bail court), then a court should be reminded of the requirements of the Criminal Practice Directions, namely:
- To deal with the Bail Act offence as soon as reasonably practicable;
- Not to defer the Bail Act offence until the proceedings for the substantive offences have been concluded;
- To consider whether bail should continue in the light of failure to surrender.
(All references are to POCA 2002 unless otherwise stated.)
3.1 CPS Legal Guidance on restraint and confiscation can be found here.
3.2 Once confiscation proceedings commence and a timetable is set, prosecuting advocates should receive a bespoke confiscation brief from their instructing prosecutor with further relevant detail.
3.3 Advocates should not assume that the absence of a financial investigation means that confiscation would be inappropriate. Confirmation should be sought from the instructing prosecutor. Confirmation should also be sought regarding whether a restraint order is in place against a defendant.
3.4 Generally, it will be appropriate to apply for a confiscation order whenever a defendant has obtained a benefit from or in connection with his criminal conduct and has the means to pay a confiscation order. Prosecution advocates should ensure that confiscation is proportionate (s.6(5)) and should consider the principles set out in the DPP's Guidance for Prosecutors on the Discretion to Instigate Confiscation Proceedings when advising a prosecutor whether to apply for confiscation in a particular case.
Agreeing confiscation orders between the parties
3.5 Where an agreed order is sought, the prosecuting advocate must take instructions from the Reviewing Lawyer dealing with the case prior to any agreement with the defence regarding any aspect of the issue of confiscation and that specifically includes where compliance orders are sought.
3.6 Where case specific instructions are given, a written note of any agreement reached in respect of confiscation and its basis must be provided to the Reviewing Lawyer and the order must clearly set out the time to pay period expiry date and default term.
4.1 The prosecuting advocate is instructed to apply for costs in all cases following conviction in order to reflect the cost of proceedings on the prosecution. The Court must determine whether to award all, some or none of that which is sought but the sentencing process should routinely involve the prosecution setting out the costs of prosecution in open court.
5.1 The inappropriate release of a defendant to bail following a failure in a custody time limit is now classified as a major corporate risk for the CPS and details must be reported to the Director personally. Internal disciplinary action may follow where the act or default of the person responsible is serious enough to merit it following an investigation. Where the prosecuting advocate is an external advocate and does not comply with the duties in these instructions, it is likely, if the situation merits it, that the matter may be reported to the Head of Chambers.
5.2 Any failure will be thoroughly investigated and the advocate will be required to submit a full report and reasons for the failure so that this can be considered by local managers in the first instance.
5.3 The definition of a failure of a custody time limit has been extended to "a finding by a court that the prosecution has not acted with the necessary due diligence and expedition".
5.4 It is therefore important that the advocate marshals the necessary information to demonstrate acting with due diligence and expedition. This includes compliance with court orders and if this is not immediately obvious from the case papers, enquiries of the caseworker or office dealing with the case will be necessary.
5.5 A protocol for the effective handling of custody time limits has been agreed between the CPS and HMCTS and approved by the Senior Presiding Judge. A copy is contained on the CPS website and all advocates should make themselves familiar with the requirements of the protocol. See Custody Time Limits.
5.6 The prosecuting advocate is reminded that each count on an indictment for which a defendant is remanded in custody carries its own custody time limit. Where an acceptable plea is given in respect of one count, the custody time limit continues on any others and, if necessary, an application may have to be made to extend the time limit if it is likely that the case against the defendant in these matters may be continued. The public interest in continuing the prosecution in these cases may not be known until sentence is passed on the admitted matters. In other cases, victims may have to be consulted and an explanation given for the decisions that may have to be made. These practical difficulties have been recognised by the Senior Presiding Judge and all members of the judiciary notified. If the matters outstanding are never going to be brought to trial, no application should be made to extend the custody time limit and an indication can be given for their discontinuance or an application made for them to lie on file.
5.7 Where defendants are remanded in custody, the prosecuting advocate should, at any hearing, request that the trial take place within the custody time limit. If this is not initially possible, the reasons should be thoroughly explored with the court staff and every effort made to delay other non-custodial work or seek an alternative venue. If a timely trial is still not possible, the advocate must apply to the court to extend the custody time limit while explaining what efforts have been made to obtain a trial date within the original time limit.
5.8 Whenever the court makes an order which will result in the custody time limit expiring before the start of the trial, an application must be made to extend or further extend the time limit on that occasion to a date 7 days after the start of the trial. Any refusal by the court to do so, with reasons, should be prominently endorsed on the brief.
5.9 When making an application to extend a CTL, the Reviewing Lawyer must ensure that the prosecuting advocate is in possession of sufficient information to satisfy the court that the conditions set out in the Prosecution of Offences Act 1985, s.22(3) are met. In particular the advocate should:
- ensure that the court has the chronology of the case (which should have been previously submitted to the court with the notice to extend the custody time limit) to demonstrate that the prosecution has acted with all due diligence and expedition, and
- demonstrate that there is good and sufficient cause to justify an extension the case of R v Manchester Crown Court ex parte McDonald  1 Cr. App. R. 409 refers. The chronology should itself demonstrate that the prosecution has acted with all due diligence and expedition. If not, it should be pleaded in the application.
5.10 In the event of a trial being fixed beyond the custody time limit and there is no likelihood of that hearing date being brought forward, in accordance with the protocol, the advocate should seek to extend the custody time limit to the date of the trial to avoid an unnecessary hearing simply to apply for a further extension. Such hearings are unnecessary and costly. The defence may make an application for the case to be listed in the event of a failure of the prosecution to comply with a court order. Such applications are approved within the protocol.
5.11 The prosecuting advocate should have access to the Custody Time Limit Ready Reckoner to help in the calculations of time limit date extensions (these should be used for a first remand only). The advocate must be able to assist in the chronology of the handling of the case and provide further details of any reasons for delay.
5.12 The advocate must announce to the court what the expiry dates of the time limits are or will be (this can be particularly problematic in the case of defendants who are released from custody to bail and breach conditions). Advocates must also endorse on the attendance note that this occurred. Advocates should familiarise themselves with the mechanics of calculating time limits. Help with some worked examples can be obtained from the legal guidance on the CPS website.
Disclosure Law and Guidance
6.1 When dealing with disclosure issues in Crown Court proceedings, all prosecution advocates must comply with:
- The Criminal Procedure and Investigations Act 1996 (CPIA)
- The Code of Practice issued under s.23 of the CPIA (Code of Practice)
- The Criminal Procedure Rules 2020
- Attorney General's Guidelines on Disclosure 2020
- Charging (The Director's Guidance) Sixth Edition 2020
6.2 Prosecution advocates should also be familiar with the CPS Disclosure Manual.
Applicable disclosure provisions
6.3 These instructions apply to the current CPIA disclosure regime. If the investigation began before 4 April 2005, reference should be made to the CPS Disclosure Manual.
Duty to disclose
6.4 Under s.3 CPIA material will fall to be disclosed to the defence if "it might reasonably be considered capable of undermining the case for the prosecution … or of assisting the case for the accused". The Attorney General's Guidelines on Disclosure 2020 outlines material that is likely to meet the disclosure test (paragraph 87).
6.5 Prosecution advocates should ensure that all material which ought to be disclosed under the disclosure test is disclosed to the defence. Before making any disclosure, prosecution advocates should seek the authority of the prosecutor.
6.6 There is no basis in practice or law for counsel to counsel disclosure.
General obligations of prosecution advocates
6.7 Upon receipt of instructions, the prosecuting advocate should ensure that they are fully informed about any material that the prosecutor has decided meets the disclosure test, the prosecutor's views on the defence statement and the prosecutor's decisions on any sensitive material, including potential public interest immunity (PII) issues. The advocate must therefore ensure that they have received all relevant information and material from the prosecutor, including:
- Copies of all unused material schedules
- Any Disclosure Management Document (DMD)
- Information about reasonable lines of inquiry
- The approach to electronic material
- The approach to any rebuttable presumption material
6.8 Prosecuting advocates should advise on:
- Whether further information or action in relation to disclosure is required
- If they disagree with any disclosure decisions that have been made, in which case they should consult with the reviewing prosecutor and the disclosure officer
- Whether they are satisfied with the disclosure strategy and the contents of the DMD
6.9 If the prosecuting advocate intends to make any disclosure at court, they must first consult with the prosecution lawyer. Following the hearing, the prosecution lawyer should be provided with a note and rationale of the decision to make disclosure.
6.10 Disclosure schedules will be security marked. The advocate must handle all material in accordance with its security marking and ensure that it is stored appropriately. Further details are found in Chapters 8 and 9 of the CPS Disclosure Manual and in the Cabinet Office guidance on government Security Classifications May 2018.
6.11 The advocate should prepare a written report in any case where a court has ruled that there has been a failure on the part of the prosecution to make proper disclosure, or the advocate believes there has been such a failure. The report should be headed "Disclosure Failure Report" and sent to the relevant Head of CPS Division / Unit.
6.12 The prosecuting advocate should ensure that any defence statement fulfils the statutory criteria under s.6A CPIA.
6.13 CrimPR 3.3 places a duty on prosecuting advocates to assist the court to manage the case, which includes an obligation to ensure that the defence properly engage with the disclosure process. Where the defence fails to respond to a prosecutor’s request for a defence statement or refuses to clarify the defence case, the advocate should raise the issue at a pre-trial hearing and consider inviting the court to give a statutory warning under s.6E(2) CPIA.
Defence applications for disclosure
6.14 Prosecuting advocates should resist defence attempts to obtain disclosure of items that fall outside the statutory test and the making by the defence of ad-hoc applications for disclosure, as such applications must be made in accordance with s.8 CPIA.
Public Interest Immunity applications
6.15 Prosecuting advocates may be instructed to make an application for PII. In accordance with R v H and C  UKHL 3, applications to the court for the withholding of sensitive material should be rare and should only be made where:
- The prosecutor has identified material that fulfils the disclosure test, disclosure of which would create a real risk of serious prejudice to an important public interest, and the prosecutor believes that the public interest in withholding the material outweighs the public interest in disclosing it to the defence;
- The above conditions are not fulfilled, but the police, other agencies or investigators, after consultation at a senior level, do not accept the prosecutor's assessment; or
- In exceptional circumstances, the prosecutor has pursued all relevant enquiries of the police and the accused and yet is still unable to determine whether sensitive material satisfies the disclosure test and seeks the guidance of the court.
6.16 There are three categories of PII applications under Part 15 CrimPR. Advocates must take care to ensure that the appropriate form of application is made.
6.17 If the court orders material to be disclosed in a redacted form, a decision needs to be made in consultation with the reviewing lawyer, the police, or the party who is claiming PII, as to whether the prosecution are prepared to disclose the material in that form. If so, the advocate must exercise particular care to ensure that the material is not disclosed to the defence in an unredacted form or in an incompletely or improperly redacted form.
6.18 If the accused seeks access to PII material that has already been the subject of a PII ruling following an "on notice" application, the advocate should remind the accused to use the proper procedures under s.14 or s.15 of the CPIA, to apply for a review of PII without jeopardising the confidentiality of the material.
6.19 If the defence requests information about the sensitive material that exists in the case, the standard response is to adopt an approach of neither confirm nor deny (NCND):
- Material to which the accused is entitled will be disclosed under the CPIA;
- The prosecutor is satisfied that the duties under the CPIA have been complied with; and
- Disclosure will be the subject of continuing review.
Confidentiality of information
6.20 Prosecuting advocates should be aware of the statutory prohibitions on onward disclosure of HMRC, DWP and NHS material, which aims to protect individuals’ confidentiality. Disclosure of such material is a criminal offence, unless one of the statutory exceptions apply:
- S.40(2) Commissioners for Revenue and Customs Act 2005
- S.129(2) Welfare Reform Act 2012
- S.201(5) National Health Service Act 2006
6.21 If the prosecuting advocate is asked to disclose such material to a third party, considers it appropriate to do so, or considers that such material may be relevant in any other case, they should contact their instructing lawyer and obtain instructions before making any disclosure.
7.1 Paragraph 96 of the Attorney Generals Guidelines on Disclosure 2020 states that Disclosure Management Documents (DMD) should be prepared in all Crown Court cases. The reviewing lawyer should have drafted and uploaded the DMD to the Crown Court Digital Case System prior to the PTPH and Counsel is instructed to review and advise on the document. The DMD outlines what has been considered by the prosecution to be a reasonable line of enquiry in the case and why, together with an explanation of how all seized electronic material has been dealt with. At the PTPH advocates should ask the defence to identify any additional lines of enquiry that they consider to be reasonable and which have not yet been undertaken. This will also enable the Judge to robustly manage the case from the outset.
7.2 The DMD is a living document which should be amended in light of developments in the case and kept up to date as the case progresses. DMDs are intended to assist the court in case management and will also enable the defence to engage from an early stage with the prosecution's proposed approach to disclosure. The prosecuting advocate must update the reviewing lawyer with any developments at Court that may require the DMD to be updated.
Presentation of DNA Evidence
8.1 Annex 7 paragraph 6 confirms that a stage 1 SFR will suffice for the purposes of making a charging decision and for the first hearing in the magistrates’ court. A full evidential statement detailing the analysis will only be required if the case proceeds to trial and aspects of the SFR are challenged by the defence, or if the issues are complex and an SFR is inappropriate. Guidance on SFR.
9.1 Prosecuting advocates should ensure that they are familiar with the Domestic Abuse Guidelines for Prosecutors. Advocates are expected to prosecute cases in accordance with our published policy and must refer to a CPS prosecutor when required, for example when considering acceptability of pleas.
9.2 The Advocate is instructed to:
- Consult the relevant CPS prosecutor on issues relating to RIC/ bail/ variations of bail. The CPS prosecutor will make the final decision in relation to these issues;
- Ensure that they have the most up to date information about victims and witnesses and refer to the IDVA for assistance with this;
- Consider any concerns expressed by the victim about the defendant being granted bail and ensure that the CPS is informed immediately of the outcome of the case and any change in the defendant's bail or custody status;
- Regard breaches of bail as serious, including those that appear to involve the acquiescence of the victim, and be mindful that new offences may have been committed;
- Ensure any existing civil court orders and bail conditions are consistent, particularly in terms of residence and of child contact;
- Make application (in appropriate cases) for priority listing;
- Seek an adjournment for the police to take a formal statement where victims appear at court wishing to withdraw their complaint.
- Ensure that full consideration is given to an evidence led prosecution rather than concentrating solely on the testimony of the victim- the relevant CPS prosecutor should be consulted about this.
- Consult the relevant CPS prosecutor on decisions relating to the acceptability of pleas, issues affecting the complainant and witness attendance at court (including compelling their attendance) for the CPS prosecutor to make the final decision
- Consider whether to make an application to the court for a restraining order on either the conviction or acquittal of the defendant. The wishes of the victim need to be taken into account and agents must ensure they indicate the terms sought for the order on the Hearing Record Sheet. If there is any doubt about whether it is appropriate to apply this must be referred to the relevant CPS Prosecutor.
Register of Expert Witnesses: Responding to Enquiries
10.1 The CPS does not hold a register of experts. Guidance on expert evidence can be found on the CPS website – Expert evidence.
10.2 When selecting an expert, It may also be useful to consider the requirements of Rule 19 of The Criminal Procedure Rules 2015 (as amended) and the associated Criminal Practice Directions 2015 (Division V Evidence) to ensure you are able to explain exactly what will be required of them in giving their evidence.
11.1 On 1 January 2005, the Freedom of Information Act 2000 came into force and gives individuals a statutory right to recorded information held by public authorities, such as the Crown Prosecution Service or a police force.
11.2 The duties imposed on public authorities are two-fold, namely:
- a duty to "confirm or deny" whether the information is held by the public authority; and
- a duty to communicate that information.
11.3 The right to access of information is subject to exemptions. The exemptions are either absolute or qualified. All Freedom of Information Act 2000 requests that the CPS receives are dealt with centrally by the Information Access Team (IAT). Any requests received should be passed to them immediately upon receipt.
Unused material, Criminal Procedure and Investigations Act and Freedom of Information Act
11.4 The Criminal Procedure and Investigations Act 1996 already applies to the disclosure of unused material in criminal proceedings. However, counsel may receive a request for information under the Freedom of Information Act 2000, when the requested information is unused and properly subject to the Criminal Procedure and Investigations Act 1996 (CPIA).
11.5 If faced with such a request at court, counsel should bear in mind the following points:
- The Freedom of Information Act 2000 application must be made in the specified manner, namely: in writing;
- state the name of the applicant and a correspondence address;
- describe the information requested.
Any disclosure made under Freedom of Information Act 2000 is made to the public. Once information is released it is in the public domain and is accessible by anyone from any country.
11.6 It must be considered by the public authority, and this power cannot be delegated to external prosecuting agents, such as counsel.
11.7 Once a Freedom of Information Act 2000 request is properly made, the CPS is duty bound to consider that request and cannot dismiss it by arguing that the CPIA applies instead. However, the defence should be invited to make an application under the CPIA instead of/in addition to the Freedom of Information Act 2000 request.
11.8 The CPS has 20 working days in which respond. This is the period of time as specified by Parliament and cannot be varied by court order.
11.9 If the defence argue that the CPIA should be disapplied in favour of Freedom of Information Act 2000, then counsel should bear in mind the following points:
- the Freedom of Information Act 2000 creates a general scheme for the disclosure of information held by public authorities; whereas
- the CPIA creates a specific disclosure regime applicable to criminal proceedings.
It is also significant to note that disclosure under the Freedom of Information Act 2000 would circumvent the provisions of s.17 of the CPIA. Section 17 provides that material disclosed to an accused person under the provisions of the CPIA is confidential, and it may only be used or disclosed for certain specified purposes.
12.1 Prosecuting advocates should be familiar with the CPS Public Policy Statement on Prosecuting Cases of Homophobic or Transphobic Hate Crime and the accompanying Guidance, which can be obtained from the CPS website. Advocates are expected to prosecute cases in accordance with our published policy.
12.2 On the general question of plea acceptance, advocates should be aware that a plea of guilty should not normally be accepted against an undertaking that available and admissible evidence of homophobic or transphobic hostility would be excluded. Advocates should also take account of the Attorney General's Guidelines on the acceptance of pleas.
12.3 Whenever there is evidence of aggravation related to sexual orientation or presumed sexual orientation or transgender identity or presumed transgender identity of the victim the Advocate must bring this to the attention of the court.
12.4 When prosecuting cases with a homophobic or transphobic element, advocates are instructed to:
- Use appropriate language. If uncertain, ask the person concerned how they wish to be addressed and find out the language with which they feel comfortable about having their sexual orientation or gender discussed.
- Challenge inappropriate or prejudicial language if others use it in court.
- Challenge material which is unnecessary in itself and may arouse homophobic or transphobic prejudice in the court or amongst the jury.
- If the fact that someone is a trans person does not need to come out in evidence, then it does not need to come out in respect of (e.g. any previous convictions: the name and gender under which they were convicted need not be mentioned).
- Use the same points (appropriate language, etc.) in respect of the accused and accused's witnesses as in respect of prosecution witnesses.
- Bear in mind that the court should be aware of the guidelines provided for judges and magistrates by the Equal Treatment Bench Book in respect of appropriate language and behaviour.
- Challenge suggestions that being lesbian/ gay/ bisexual or transgender is in some way linked with criminal behaviour such as child molesting, or with public sexual activity.
- Be aware that it may have taken extreme courage for a witness or victim to come forward if the result is going to be that they are "outed" in court as being lesbian/ gay/ bisexual or transgender or subject to further harassment or abuse.
- Respect the individuality of each witness, and challenge casual stereotyping (e.g. of lesbians as "butch", or of gay men as promiscuous or effeminate).
- Be aware that the handling of this case is likely to influence someone present in court or someone who follows media coverage of the case, about whether or not to report a future homophobic or transphobic crime.
- Consider whether an application under s.46 of the Youth Justice and Criminal Evidence Act 1999, for a prohibition against the reporting of certain witness details in the media, is appropriate.
- In advising on sentence, prosecuting advocates must draw the court's attention to s.146 and summarise key elements of the evidence in support.
13.1 Prosecuting advocates should be familiar with the CPS Legal Guidance on Prosecuting Cases of Disability Hate Crime published in August 2017. Advocates are expected to prosecute cases in accordance with our published policy.
13.2 Hostility based on disability or presumed disability of the victim is a factor that increases the seriousness of an offence (s.146 of the Criminal Justice Act 2003).
13.3 Section 146 imposes a duty upon courts to increase the sentence for any offence committed in any of the circumstances mentioned in s.146(2).
13.4 It is important that advocates have a statement (where one is available) that sets out the effects of the crime on the victim (Victim Personal Statement).
13.5 Where available, advocates should make use of a Community Impact Statement to assist sentencing decisions.
14.1 Consideration should be given in relevant cases to making orders under s.39 of the Children and Young Persons Act 1933. The Advocate should be familiar with the Contempt of Court Act 1981, the CPS legal guidance on Reporting Restrictions - Children and Young People as victims, witnesses and defendant and the Judicial College 'Reporting Restrictions in the Criminal Court'.
14.2 To protect the integrity of trials, reporting restrictions are sometimes required. Advocates should be familiar with the CPS legal guidance Contempt of Court and Reporting Restrictions.
14.3 The CPS has signed a Protocol on the Release of Prosecution Material to the Media, with the National Police Chief's Council and media representatives. The overriding objective is to provide an open and accountable prosecution process, by ensuring the media have access to all relevant material wherever possible, and at the earliest appropriate opportunity. The aim is to ensure that justice is done and seen to be done while at the same time balancing the rights of defendants to a fair trial with any likely consequences for victims or their families and witnesses occasioned by the release of prosecution material.
14.4 Prosecuting advocates appearing in court on behalf of the Crown Prosecution Service are publicly representing the service and should give their full name to any media representative that asks for it. Where the prosecuting advocate is from the self-employed Bar any press statements or information passed to the media (save for a reiteration of that reported in open court) should be run by the relevant CPS lawyer for consideration and approval.
15.1 The prosecuting advocate is referred to the CPS Legal Guidance on prosecution rights of appeal which sets out comprehensively the law and how and in what circumstances the right should be exercised. It is the responsibility of the Chief Crown Prosecutor (CCP) for the Area to decide whether the right of appeal should be exercised, after consultation with the prosecution advocate and any other appropriate person. Where the CCP is not available, a person nominated by them should make the decision. The advocate should always apply for an adjournment where there has been no prior consultation with the CCP or nominated person. In the unlikely event that a judge refused an adjournment and the prosecuting advocate is unable to consult with the CCP or nominated person, the advocate must make the decision, following the guidelines set out in the Legal Guidance, whether or not to appeal. The decision of the advocate should be reviewed by the CCP or nominated person as soon as possible to determine whether to proceed with or abandon the appeal.
15.2 The CPS Legal Guidance can be accessed on the CPS website here.
16.1 Prosecuting advocates should be familiar with the CPS Public Policy Statement on Prosecuting Racist or Religious Crime and the accompanying Guidance, which was updated and re-launched in August 2017, and which can be obtained from the CPS website. Advocates are expected to prosecute cases in accordance with our published policy.
16.2 It is especially important in racially or religiously aggravated offences that the advocate has a statement (where one is available) that sets out the effects of the crime on the victim (Victim Personal Statement).
16.3 Where available, prosecuting advocates should make use of a Community Impact Statement to assist sentencing decisions.
17.1 Advocates should ensure that they are familiar with and apply the principles set out in the following key CPS policies and guidance documents which are all available on the CPS website:
- CPS Rape and Sexual Offences Legal Guidance;
- CPS Policy for Prosecuting Cases of Rape
- RASSO 2025
- Domestic Abuse Guidelines for Prosecutors
- Controlling or Coercive Behaviour in an Intimate or Family Relationship
- Indecent Images of Children (IIOC)
- Revenge Pornography: Guidelines on prosecuting the offence of disclosing private sexual photographs and films without consent
- Perverting the course of justice and wasting police time in cases involving allegedly false allegations of rape and/or domestic abuse
- A guide to reasonable lines of enquiry and communications evidence
17.2 The CPS recognises that these offences are a uniquely intimate violation of another, the effects of which can be deeply traumatic upon the victim and others. Stereotypes and misconceptions are often applied to a victim's behaviour, and the CPS is committed to challenging these erroneous assumptions by effective presentation and conduct of these cases. Advocates should ensure that inappropriate and irrelevant questioning of a victim is challenged. Advocates must also ensure that appropriate judicial directions are given in accordance with the Crown Court Compendium.
17.3 It is essential that Advocates are robust in dealing with applications under s.41 and that the court procedure is followed to ensure that inappropriate questioning does not take place. Advocates should raise the issue at PTPH and press for adherence to the timetable for written applications contained in Rule 36 of Criminal Procedure Rules. Applications to delay under Rule 36.1 (a) (v) and late oral applications under Rule 36.1 (13) should be challenged and resisted if appropriate. Advocates are reminded of their duty to inform the witness of the result of any s.41 application.
17.4 If the court grants leave to cross-examine a complainant about previous sexual behaviour, it will be essential to review the position relating to special measures. Advocates must consider whether it is appropriate to seek an adjournment for the proper consideration of issues relating to witnesses. It may be necessary to make an application to the court for one or more of the special measures provided by the Act or to apply to vary a pre-existing direction.
Adverse Outcome Reports
17.5 The CPS is committed to ensuring that the issues, which may have led to an acquittal in rape cases are analysed fully. The prosecuting advocate is, therefore, required to provide the CPS with written reasons in any rape cases that ends in an acquittal. The advocate should set out the legal and factual reasons for the acquittal and provide appropriate written advice as necessary. Depending on the circumstances of the acquittal, this may be a brief note or a more formal written advice.
18.1 An advocate may not consider the sentence imposed unduly lenient, but may receive, or be made aware of, a complaint about the leniency of the sentence. This may come from a victim or victim's family or another interested party. The Advocate should tell any such person that their views will be passed to the Crown Prosecution Service to consider, but that they can also personally ask the Attorney General to consider the case. The Advocate should stress that this must be done within 28 days of the sentence being passed. The Advocate should also immediately inform a representative of the Crown Prosecution Service of any such complaint about the sentence.
18.2 An advocate who considers that a sentence may be unduly lenient should provide the CPS with a written advice within 48 hours of sentence. This advice should be drafted in accordance with the template set out below (issued on 24 November 2005).
18.3 No reference to any text or SOCPA agreement must be made in any email or in other documents (including for example any advice from Counsel concerning a potentially unduly lenient sentence).
18.4 There should be no direct reference to the existence of a text. Words should be used to the effect that there is "further information" that will need to be taken into account, without specifying what it is.
18.5 Please note that 'texts' and SOCPA agreements must be treated as sensitive material and in most cases should be classified as "Secret".
18.6 The prosecuting advocate will know that there is a mandatory time limit of 28 days in which to apply for a reference. If the view is taken that the sentence should be appealed, the CPS Unit Head must be contacted as a matter of urgency to discuss the position and agree time scales.
18.7 The advocate will need to draft an advice in the format set out in the guidance.
19.1 The Prosecutors' Pledge is a public commitment that clearly outlines the level of service that victims can expect to receive from prosecutors. It applies equally to external prosecuting advocates instructed by a prosecuting authority, such as the CPS.
19.2 Prosecuting advocates should familiarise themselves with the Pledge and the CPS delivery of its public commitment and ensure that the principles are always applied in dealing with victims at each stage of the court process. Prosecuting advocates must also be aware of the Victims' Code obligations in relation to advocacy which reflect existing CPS guidance and good practice.
CPS Victim Communication and Liaison Scheme
19.3 In order to allow the CPS to meet its obligations under the Victim Communication and Liaison (VCL) scheme the advocate is instructed that where he or she offers no evidence, or substantially alters a count on the indictment, or where the Crown Court orders that a charge lie on file, he or she should make a full note of the reasons for the decision so that the CPS, in due course, can provide a meaningful and reasonable explanation to the victim, in writing.
19.4 When a decision is based on the public interest, the CPS will consider the consequences of that decision for the victim and will take into account any views expressed by the victim or the victim's family. A full note should be made whether or not the decision has been discussed with the victim at court. Where practical the advocate should speak and explain the decision to the victim or the victim's family.
Speaking to Witnesses at Court
19.5 Prosecuting advocates will need to familiarise themselves with the guidance for Speaking to Witnesses at Court and ensure that the principles relating to engagement with victims and witnesses are applied.
CPS service to bereaved families
19.6 The CPS service to bereaved families has been put in place to ensure that CPS prosecutors meet bereaved families in homicide cases, in person, to explain the charging decision, court process and procedures and provide them with an opportunity to make a victim personal statement. Further information can be found in the Bereaved Families - Guidance on CPS service to bereaved families in homicide cases.
19.7 The CPS website contains CPS guidance and information about the role of the CPS for victims and witnesses.
Victims' Right to Review Scheme
19.8 On 5 June 2013 the CPS launched the Victims' Right to Review Scheme.
19.9 In order to allow the CPS to meet its obligations under the VRR scheme, the advocate is instructed to make a full note of the reasons for any decision to terminate proceedings.
19.10 Where practical the advocate should speak and explain the decision(s) to the victim or the victim's family after considering any views of the victim or victim's family as a part of the decision-making process. The advocate should also advise the victim or victim's family of the VRR process (making clear that this will not allow the decision to be reversed if the defendant has been acquitted). The advocate is instructed to endorse his or her papers to confirm this has been done, together with the outcome of any discussions.
19.11 It is vital to highlight the importance of early and appropriate decision making. By opting to offer no evidence the victim is denied the possibility of proceedings being re-issued as a result of the VRR process and so, wherever possible and appropriate, the CPS will terminate proceedings by Notice of Discontinuance or by application to withdraw.
20.1 Advocates should be familiar with the revised guidance "Achieving Best Evidence in Criminal Proceedings", published in March 2011. This revised guidance was agreed by the Association of Police Officers (ACPO) now known as the National Police Chiefs' Council (NPCC) and the CPS.
20.2 Advocates should be aware that pre-recorded cross examination of eligible witnesses under s.28 of the Youth Justice and Criminal Evidence Act 1999 is now available in all Crown Courts in England and Wales. Advocates should assess whether a witness is eligible for a s.28 special measure and should make the application at the PTPH if appropriate. Advocates should be familiar with the expediated timetable for s.28 cases and must clearly note the Court directions in the hearing record sheet.
20.3 Advocates should also be aware of and have regard to the CPS Special Measures legal guidance.
21.1 Prosecuting advocates should be familiar with the CPS commitments to support victims and witnesses. In all cases involving a child victim or witness, or a vulnerable or intimidated victim, the advocate is instructed to use best endeavours to fix an early trial date and to resist attempts to delay the listing of the case. This is particularly important when the witness is a very young child. In the Young Witness Protocol, the CPS, police and HMCTS have committed to expediting cases for witnesses under 10 years old where possible (see paragraph 6.9 of the Protocol).