- Minor Offences charged by the Police
- Alternative to Prosecution
- The Public Interest
- Common sense
This guidance has been prepared to help decision-makers who are reviewing cases involving minor offences to decide whether a prosecution or an alternative disposal is more appropriate.
In cases involving minor offences, a decision to prosecute may have serious ramifications if the prosecution is a disproportionate response to the offending. For instance, the cost to the person charged and to the criminal justice system (CJS) may be disproportionately high in relation to the loss or harm caused by the offence; and even if the prosecution is successful, it may result in only a nominal penalty being imposed by the courts.
A decision to prosecute a minor offence is therefore a serious step and should only be taken after the reviewing prosecutor has considered whether the offence can be disposed of in an alternative way (which includes not taking any action), and concludes that a prosecution is the most appropriate disposal.
For the purposes of this guidance, minor offences may be categorised as either:
(a) offences which by their nature are minor in themselves; or
(b) offences which are not minor in themselves but which, depending on the particular facts of the case, may be regarded as minor: for example, the offence of theft covers a range of offending - for example, from 1p to £100M - and which, at the lower monetary value may often may be viewed as minor offending.
Whether a minor offence merits prosecution will depend on the circumstances of the case, such as the nature of the offence and the way in which it was committed, the loss or harm caused, the likely sentence, the views of the victim, and any previous relevant offending by the suspect.
Identifying when a case is minor is the first step in determining the appropriate disposal. Minor offences in themselves may be relatively easy to identify, whereas those that are minor due to the circumstances of the case may require more careful consideration.
For this reason, it is important to establish an early view of the seriousness of the offence and the characteristics of the offender. Once a review of the case reveals that there is sufficient evidence to provide a realistic prospect of conviction, the reviewing prosecutor must consider whether it is in the public interest to charge the suspect or whether the public interest is better served by an out-of-court Disposal (OOCD), or by no further action.
In forming a view on where the public interest lies, the prosecutor will have regard to the public interest factors tending in favour of and against prosecution. In particular, where a court is likely to impose only a nominal penalty, a prosecution will often not be in the public interest.
In some cases, it may not be clear from the case papers whether a prosecution or an alternative disposal is a more appropriate response to the offence. If it is not sufficiently clear where the public interest lies, further evidence or information should be sought before a decision is made.
Minor Offences charged by the Police
The majority of cases prosecuted by the CPS are charged by the police, and many of these will include minor offences. When reviewing police-charged cases, prosecutors should consider whether a prosecution is the most appropriate disposal.
Where a prosecutor decides that a charged offence should be dealt with by way of a caution or conditional caution (or any other OOCD), the police should be advised and, if the OOCD is accepted by the defendant, the proceedings should be terminated.
Alternatives to Prosecution
The alternatives to prosecution available to a prosecutor are:
(b) conditional cautions;
(c) Penalty Notices for Disorder (which can be suggested to the police as an appropriate disposal);
(d) reprimands and final warnings (for youths only);
(e) no further action.
Prosecutors should be proactive in seeking to use non-prosecution disposals for minor offences whenever appropriate.
However, sometimes a prosecution will be a proper disposal for a minor offence. For instance, where a suspect has already received one or more previous OOCDs, such as a recent caution, or a reprimand and a final warning, a prosecutor may quite properly decide that these alternative disposals have failed to deter the person from re-offending, and that a prosecution is therefore a proper and proportionate response.
At the heart of the decision-making process are two requirements: the appropriate assessment of the public interest as set out in the Code for Crown Prosecutors and the application of common sense.
The Public Interest
In many cases of minor offending the loss or harm is minor, and the seriousness and consequence of the offending is low-level. When assessing the public interest in such cases, prosecutors should in particular consider whether it is likely that the court would impose only a nominal penalty on conviction.
If so, the cost, delay and uncertainty of outcome involved in bringing criminal proceedings would usually not be a proportionate response to the offending, and therefore a prosecution would not be in the public interest. In such cases, the OOCDs available to a prosecutor are likely to be as or more effective in terms of individual retribution or general deterrence as any nominal penalty imposed by the court.
Where no admission is made to a minor offence by the suspect, and it is therefore not possible to offer a caution or conditional caution, prosecutors will be faced with a choice between initiating proceedings and taking no action. In some such cases, depending on all the circumstances, no further action may be the more appropriate disposal.
Prosecutors should also be mindful that where a decision is made that a person should be given a caution or conditional caution, and it proves not to be possible to give the person the caution or conditional caution (for instance, the person does not make the required admission of guilt or simply refuses to accept the caution), the person must instead be charged with an offence (see the Police and Criminal Evidence Act 1984, section 37(B)(7), and the Code for Crown Prosecutors, paragraphs 7.4 and 7.8). Therefore, once an OOCD has been offered to a suspect, it will no longer be possible to take no further action, unless the circumstances change.
Accordingly, before making a decision to offer or authorise an OOCD, prosecutors should bear in mind that if the OOCD is not administered for any reason, a prosecution will invariably follow. For this reason, it will always be important to give careful consideration to whether the public interest lies more appropriately in no further action than in the offer of an OOCD.
Common sense should also guide prosecutors at all levels when deciding the appropriate course of action. They should stand back from the particular facts of the case and look at the alleged offending in the context of everyday life. Applying the letter of the criminal law to the facts of each individual case is, of course, entirely appropriate, but so is looking at the alleged offending in the round and identifying the right disposal in the circumstances.