DRAFT - The Code for Crown Prosecutors, 9th Edition - FOR CONSULTATION

Publication CPS operational information Business Information Policy and Guidance

This draft version of the Code is for use only for the purposes of the ongoing consultation and must not be used for prosecutorial decision-making

Introduction

1.1 The Code for Crown Prosecutors (the Code) is issued by the Director of Public Prosecutions (DPP) under section 10 of the Prosecution of Offences Act 1985. This is the ninth edition of the Code and replaces all earlier versions.

1.2 The DPP is the head of the Crown Prosecution Service (CPS), which is the principal public prosecution service for England and Wales. The DPP operates independently, under the superintendence of the Attorney General who is accountable to Parliament for the work of the CPS.

1.3 The Code serves a dual purpose:

  • It gives guidance to prosecutors on the general principles to be applied when making decisions about prosecutions and, where relevant, on the exercise of non-prosecution powers available to prosecutors, whether they are pursued in parallel or as an alternative to prosecution. The Code is issued primarily for prosecutors in the CPS, but other prosecutors follow the Code, either through convention or because they are required to do so by law.
  • The Code also promotes public confidence in CPS decision making, by informing the public about the way in which prosecution decisions are made.

Glossary

1.4 In this Code:

  • “Defendant” is used to describe a person who has been charged with a criminal offence or summonsed to attend court in answer to a charge.
  • “Non-prosecution proceedings” and “non-prosecution powers” include Civil Recovery, Deferred Prosecution Agreements and Serious Crime Prevention Orders.
  • “Offender” is used to describe a person who has committed an offence, admitted guilt as to the commission of an offence, or who has been found guilty in a court of law.
  • “Public body” is used to refer to various public entities, including government departments, agencies, regulators and disciplinary bodies. 
  • “Suspect” is used to describe a person who is under consideration as the subject of formal criminal proceedings.
  • “Victim” is used to describe a person against whom an offence has been committed, or the complainant in a case being considered or prosecuted by the CPS.

General Principles

2.1 The rule of law is a fundamental principle in a just and fair society, which ensures that no one is above the law, that the law applies equally to everyone and that individual rights are respected. The CPS upholds the rule of law by making decisions in accordance with the law, the evidence and the public interest, and by consistently applying the principles set out in this Code, which is accessible to the public.

2.2 The independence of the prosecutor is central to the criminal justice system of a democratic society. Prosecutors are independent from persons or agencies that are not part of the prosecution decision-making process, including Parliament, the Senedd, the UK Government, the Welsh Government, the Crown and the judiciary. CPS prosecutors are also independent from the police and other investigators. Prosecutors must be free to carry out their professional duties without political interference and must not be affected by improper or undue pressure or influence from any source. This independence protects individuals who are subject to prosecution decisions from any abuse of power.

2.3 It is not the function of the CPS to decide whether a person is guilty of a criminal offence, but to make assessments about whether it is appropriate to present charges for the criminal court to consider. The CPS assessment of any case is not in any sense a finding of, or implication of, any guilt or criminal conduct. A finding of guilt can only be made by a court.

2.4 Similarly, a decision not to bring criminal charges does not necessarily mean that an individual has not been a victim of crime. It is not the role of the CPS to make such determinations.

2.5 The decision to prosecute or to recommend an out-of-court resolution, or the use of non-prosecution powers, is a serious step that affects suspects, victims, witnesses and the public at large and must be undertaken with the utmost care.

2.6 It is the duty of prosecutors to make sure that the right person is prosecuted for the right offence and to bring offenders to justice wherever possible. Casework decisions taken fairly, impartially and with integrity help to secure justice for victims, witnesses, suspects, defendants and the public. Prosecutors must ensure that the law is properly applied, that relevant evidence is put before the court and that obligations of disclosure are complied with.

2.7 Although each case must be considered on its own facts and on its own merits, there are general principles that apply in every case.

2.8 Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction. They must be fair, objective and even-handed in their approach to every case. Their decisions must not be influenced by any form of bias, whether that of the prosecutor or a third party. Particular care must be taken to avoid bias in relation to any protected characteristic (protected characteristics under the Equality Act 2010 and hate crime characteristics under section 66 of the Sentencing Act 2020). Equally, prosecutors must not let any personal views influence their decisions. Neither must they be motivated by political considerations.

2.9 Prosecutors have a duty to provide the best possible service to victims, while protecting the rights of suspects and defendants.

2.10 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.

2.11 The CPS is a public authority for the purposes of current, relevant equality legislation and is bound by the duties set out in this legislation.

2.12 Prosecutors should be familiar with their various professional duties and obligations, and should discharge them. In particular, they must act in a way which is compatible with the Human Rights Act 1998 and the European Convention on Human Rights, and comply with the Criminal Procedure Rules, Criminal Practice Directions and, where relevant, the Civil Procedure Rules. Prosecutors should also adhere to any guidelines issued by the Attorney General and with the policies and guidance of the CPS, unless there is good reason not to do so.

2.13 The CPS prosecutes on behalf of some other public bodies. In such cases, prosecutors should have regard to, but are not bound by, any relevant enforcement policies of those public bodies.

2.14 Some offences may be prosecuted by either the CPS or by other prosecutors in England and Wales. When making decisions in these cases, CPS prosecutors may, where they think it appropriate, have regard to any relevant enforcement or prosecution policy or code of the other prosecutor.

2.15 Where the law differs between England and Wales, prosecutors must apply the Code and have regard to any relevant policy, guidance or charging standard.

2.16 The CPS uses Artificial Intelligence (AI) responsibly and ethically, to assist it in its work, but prosecutors must take prosecution decisions and be accountable for them.

The Decision Whether to Prosecute

Responsibilities of the prosecutor and the police

3.1 In more serious or complex cases, prosecutors decide whether a person should be charged with a criminal offence and, if so, what that offence should be. Prosecutors may also advise on or authorise out-of-court resolutions as an alternative to prosecution, and may use non-prosecution powers as an alternative or in addition to prosecution. They make their decisions in accordance with this Code, the DPP’s Guidance on Charging and any relevant legal guidance or policy. The police apply the same principles in deciding whether to start criminal proceedings against a person in those cases for which they are responsible.

3.2 The CPS does not conduct criminal investigations and prosecutors cannot direct the police and other investigators, who are responsible for investigating any alleged crime and for deciding how to deploy their resources. This includes decisions to start or continue an investigation and on the scope of the investigation. 

3.3 Prosecutors should advise the police and other investigators about possible reasonable lines of inquiry, evidential requirements, pre-charge procedures, disclosure management and the overall investigation strategy. This can include decisions to refine or narrow the scope of the criminal conduct and the number of suspects under investigation. Such advice assists the police and other investigators to complete the investigation within a reasonable period of time and to build the most effective prosecution case. Where relevant, there should also be consideration at an early stage of an asset recovery strategy to investigate, freeze and recover any proceeds of crime.

3.4 Prosecutors should identify and, where possible, seek to rectify evidential weaknesses but, subject to the Threshold Test (see section 5), they should quickly stop cases which do not meet the evidential stage of the Full Code Test (see section 4) and which cannot be strengthened by further investigation, or where the public interest clearly does not require a prosecution (see section 4). Although prosecutors primarily consider the evidence and information supplied by the police and other investigators, the suspect or those acting on their behalf may also submit evidence or information to the prosecutor, before or after charge, to help inform the prosecutor’s decision. In appropriate cases, the prosecutor may invite the suspect or their representative to do so.

3.5 Prosecutors should not start or continue a prosecution where their view is that it is highly likely that a court will rule that a prosecution is an abuse of its process and stay the proceedings.

3.6 Prosecutors review every case they receive from the police or other investigators. Review is a continuing process and prosecutors must take account of any change in circumstances that occurs as the case develops. This includes what becomes known of the defence case, any further reasonable lines of inquiry that should be pursued, and receipt of any unused material that may undermine the prosecution case or assist the defence case, to the extent that charges should be altered or discontinued, or the prosecution should not proceed. If a case is to be stopped, care should be taken when choosing the method of termination, as this can affect the victim’s position under the Victims' Right to Review scheme. Wherever possible, prosecutors should consult the investigator when considering changing the charges or stopping the case. Prosecutors and investigators work closely together, but the final responsibility for the decision whether or not a case should go ahead rests with the CPS.

Consent cases

3.7 Parliament has decided that a limited number of offences should only be taken to court with the consent of the DPP, which may be given by a Crown Prosecutor. In very limited circumstances the DPP must personally consent to the prosecution. In all such “consent” cases, the prosecutor or DPP applies the Code in deciding whether to give consent to a prosecution.

3.8 There are also certain offences that can only be taken to court with the consent of the Attorney General. Prosecutors must follow current guidance when referring any such cases to the Attorney General.

3.9 Some offences require the consent of a Secretary of State before a prosecution is started. Prosecutors must obtain such consent prior to charge and apply any relevant guidance in these cases.

Attorney General superintendence

3.10 The Attorney General will be kept informed of certain cases as part of their superintendence of the CPS and accountability to Parliament for its actions.

The Full Code Test

4.1 Prosecutors must only start or continue a prosecution when the case has passed both stages of the Full Code Test. The exception is when the Threshold Test may be applied (see section 5).

4.2 The Full Code Test has two stages:

  1. The evidential stage - Is there sufficient evidence to provide a realistic prospect of conviction? followed by
  2. The public interest stage - Is a prosecution required in the public interest?

The stages are set out in detail at paragraphs 4.7 to 4.18.

4.3 The Full Code Test should be applied:

  1. When all outstanding reasonable lines of inquiry have been pursued; or
  2. Prior to outstanding reasonable lines of inquiry 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.

4.4 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. A post-charge action plan should be used for other evidence or material that is required.

4.5 In most cases prosecutors should only consider whether a prosecution is in the public interest after considering whether there is sufficient evidence to prosecute. However, there will be cases where it is clear, prior to reviewing all the evidence, that the public interest does not require a prosecution. In these instances, prosecutors may decide that the case should not proceed further, or that non-prosecution powers should be considered.

4.6 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 continue, and a decision taken later in accordance with the Full Code Test set out in this section.

The Evidential Stage

4.7 Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge (for the purposes of the Code for Crown Prosecutors, “conviction” includes a finding that “the person did the act or made the omission” in circumstances where the person is likely to be found not guilty on the grounds of insanity).  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. Where a case does not pass the evidential stage, prosecutors should consider the use of non-prosecution powers and, in appropriate cases, whether to return the case to the body that referred the case, or consider any other public body that may be able to take action, such as a regulatory or civil body.

4.8 The finding that there is a realistic prospect of conviction is based on the prosecutor’s objective assessment of the evidence, including the impact of any stated or reasonably anticipated defence, and any other information that the suspect has provided or on which they might rely. 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.

4.9 When deciding whether there is sufficient evidence to prosecute, as part of their consideration, prosecutors should ask themselves the following questions:

Question 1 – Is there sufficient evidence in relation to each element of the offence?

Prosecutors should identify all of the offence elements that need to be proved, establish which are likely to be in dispute or need to be addressed more fully, and ensure that there is sufficient evidence in relation to each element. 

Question 2 - Can the evidence be used in court?

Prosecutors should consider whether there is any question over the admissibility of certain evidence. In doing so, prosecutors should assess:

  • The likelihood of that evidence being held as inadmissible by the court
  • The importance of that evidence in relation to the evidence as a whole.

Question 3 – Is the evidence reliable?

Prosecutors should consider whether there are any reasons to question the reliability of the evidence, including its accuracy or integrity.

Question 4 - Is the evidence credible?

Prosecutors should consider whether there are any reasons to doubt the credibility of the evidence, to ensure that it is reasonably capable of belief.

Question 5 - Is there any other material that might affect the sufficiency of evidence?

Prosecutors must consider at this stage and throughout the case whether there is any material that may affect the assessment of the sufficiency of evidence, including examined and unexamined material in the possession of the police, and material that may be obtained through further reasonable lines of inquiry.

The Public Interest Stage

The key principles

4.10 It has never been the rule that a prosecution will automatically take place once the evidential stage is met. Therefore, in every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether the public interest requires a prosecution or not. 

4.11 However, a prosecution will usually take place unless the prosecutor is satisfied that the public interest tends against prosecution, and this outweighs any public interest tending in favour. 

4.12 Where the public interest appears to merit further action, but one which could fall short of a prosecution, the public interest may be properly served by offering the offender the opportunity to have the matter dealt with by an out-of-court resolution rather than bringing a prosecution. 

4.13 Prosecutors should also consider the use of non-prosecution powers, which may be used in addition to or as an alternative to a prosecution or an out-of-court resolution, and, in appropriate cases, whether to refer the case to the relevant public body. It will be a matter for the public body what action, if any, to take: what the prosecutor must address is whether the public interest is served by that referral.

4.14 If any requirements for an out-of-court resolution are not met, and there is no other suitable disposal, prosecutors should revisit whether the public interest would be better served by a prosecution or by taking no further action.

Assessing the public interest

4.15 When deciding whether a prosecution is in the public interest, prosecutors should consider all five questions set out below in paragraph 4.18, so as to identify and determine the relevant public interest factors tending for and against prosecution. These factors, together with any public interest factors set out in relevant guidance or policy issued by the DPP, should enable prosecutors to form an overall assessment of the public interest. Where applicable, prosecutors should also consider the enforcement policy of the relevant public body.

4.16 The explanatory text below the five questions in paragraph 4.18 provides guidance to prosecutors when addressing each question and determining whether it identifies public interest factors for or against prosecution. The questions are not exhaustive, and not all the questions may be relevant in every case. The weight to be attached to each of the questions, and the factors identified, will also vary according to the facts and merits of each case.

4.17 It is quite possible that one public interest factor alone may outweigh several 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 those factors put to the court for consideration when sentence is passed.

4.18 Prosecutors should consider each of the following questions:

Question 1 – What are the circumstances of the victim?

  • Prosecutors should take into account the circumstances of the victim, any views provided by the victim, including the impact of the offence on them, and any risk assessment in relation to the victim. 
  • However, the CPS 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.
  • The more vulnerable the victim’s situation, or the greater the perceived vulnerability of the victim, the more likely it is that a prosecution is required. This includes where a position of trust or authority exists between the suspect and victim.
  • A prosecution is more likely if the offence was committed against a victim who is an emergency worker, a person in public service or someone who serves the public, who at the time of the offence was acting as such, or against whom the offence was committed because they were such a person.
  • For all hate crime offences, there is a strong public interest in prosecution, and a prosecution will usually follow where the evidential test is satisfied.
  • Prosecutors also need to consider if 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, the availability of special measures and the possibility of a prosecution without the participation of the victim.

Question 2 - How serious is the offence committed?

  • The more serious the offence, the more likely it is that a prosecution is required.
  • When assessing the seriousness of an offence, prosecutors should include in their consideration the factors listed at a) and b) below in relation to the suspect’s level of culpability and any harm which the offence caused, was intended to cause or might foreseeably have caused. 

a) Culpability

  • The greater the suspect’s level of culpability, the more likely it is that a prosecution is required.
  • Culpability is likely to be determined by:
    • the suspect’s level of involvement
    • the extent to which the offending was premeditated and/or planned
    • the extent to which the suspect has benefitted from criminal conduct
    • whether the suspect has previous criminal convictions and/or out-of-court resolutions and any offending whilst on bail or whilst subject to a court order
    • whether the offending was or is likely to be continued, repeated or escalate
    • the suspect’s age and maturity (see Question 3 below)
  • A suspect may, depending on the circumstances, have a lower level of culpability if the suspect has been compelled, coerced or exploited, particularly if they are the victim of a crime that is linked to their offending.
  • Prosecutors should also have regard to whether the suspect is, or was at the time of the offence, affected by any significant:
    • physical ill health or disability
    • mental ill health, disability or disorder, including a neurodevelopmental disorder

In some circumstances this may mean that it is less likely that a prosecution is required. However, prosecutors should also consider the need to safeguard the public or those providing care to such persons.

b) Harm

  • The greater the harm, the more likely it is that a prosecution is required.
  • Harm may be caused not only to individuals but also, for instance, to a community, the state, the economy, public health or safety, public welfare, the climate and biodiversity.
  • Harm includes physical injury, psychological harm and financial loss. 
  • The greater the impact of the offending on the community, the more likely it is that a prosecution is required. For example, a community may be caused particular harm by the prevalence of an offence or because a specific offence results in widespread fear, distress or a sense of insecurity. Community is not restricted to communities defined by location and may relate to a group of people who share certain characteristics, experiences or backgrounds, including an occupational group. Evidence of impact on a community may be obtained by way of a Community Impact Statement.

Question 3 - What was the suspect’s age and maturity at the time of the offence?

  • The criminal justice system treats children and young people differently from adults and significant weight must be attached to the age of the suspect if they are a child or young person under 18.
  • The best interests and welfare of the child or young person must be considered, including whether a prosecution is likely to have an adverse impact on their future prospects that is disproportionate to the seriousness of the offending.
  • Prosecutors must have regard to the principal aim of the youth justice system, which is to prevent offending by children and young people.
  • Prosecutors should consider the suspect’s maturity, as well as their chronological age, as young adults will continue to mature into their mid-twenties.
  • As a starting point, the younger the suspect, the less likely it is that a prosecution is required.
  • However, in some circumstances, notwithstanding the fact that the suspect is under 18 or lacks maturity, the seriousness of the offence or other factors may mean that a prosecution is in the public interest. 
  • 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, prosecutors should consider whether a prosecution may lead to an unjust outcome, particularly where there will be a long period between the offence and any sentence.  

Question 4 – Is prosecution a proportionate response?

  • In considering whether prosecution is proportionate to the likely outcome, the following may be relevant:
    • the cost to the CPS and the wider criminal justice system, although prosecutors should not decide the public interest based on this factor alone
    • the likely penalty, particularly a nominal penalty
    • the principles of effective case management. For example, in a case involving multiple suspects, prosecution might be reserved for the main participants in order to avoid excessively long and complex proceedings
    • the availability of other suitable disposals that may satisfy the public interest

Question 5 - Would a prosecution cause or risk harm?

  • Special care should be taken when starting or continuing with a prosecution where there is cogent evidence of a risk of harm to an important public interest, including harm to sources of information, ongoing investigations, international relations or national security; or a risk of serious harm or death to a person. It is essential that such cases are kept under continuing review.

Out-of-Court Resolutions

5.1 An out-of-court resolution may take the place of a prosecution if it is an appropriate response to the offender and/or the seriousness and consequences of the offending, so that the public interest is properly served by such a disposal.

5.2 Prosecutors must ensure that the requirements for an out-of-court resolution are met, including a clear admission of guilt, that any relevant guidance is followed and, where practical, the views of the victim are obtained and considered.

The Threshold Test

6.1 In limited circumstances, where the Full Code Test is not met, the Threshold Test may be applied to charge a suspect. The seriousness or circumstances of the case must justify the making of an immediate charging decision, and there must be substantial grounds to object to bail.

6.2 There must be a rigorous examination of the five conditions of the Threshold Test, to ensure that it is only applied when necessary and that cases are not charged prematurely. All five conditions must be met before the Threshold Test can be applied. Where any of the conditions are not met, there is no need to consider any of the other conditions, as the Threshold Test cannot be applied and the suspect cannot be charged.

First condition - There are reasonable grounds to suspect that the person to be charged has committed the offence

6.3 Prosecutors must be satisfied, on an objective assessment of the evidence, that there are reasonable grounds to suspect that the person to be charged has committed the offence. The assessment must consider the impact of any defence or information that the suspect has put forward or on which they might rely.

6.4 In determining whether there are reasonable grounds to suspect, prosecutors must consider all of the material or information available, whether in evidential format or otherwise. Prosecutors must be satisfied that the material to be relied on at this stage is capable of being:

  • Put into an admissible format for presentation in court
  • Reliable
  • Credible.

Second condition - Further evidence can be obtained to provide a realistic prospect of conviction

6.5 Prosecutors must be satisfied that there are reasonable grounds to believe that the continuing investigation will provide further evidence, within a reasonable period of time, so that when all the evidence is considered together, including material which may point away from as well as towards a particular suspect, it is capable of establishing a realistic prospect of conviction in accordance with the Full Code Test.

6.6 The likely further evidence must be identified by the prosecutor and not merely speculative.

6.7 In reaching this decision prosecutors must consider:

  • The nature, extent and admissibility of any likely further evidence and the impact it will have on the case
  • The charges that all the evidence will support
  • The reasons why the evidence is not already available
  • The time required to obtain the further evidence, including whether it could be obtained within any available detention period
  • Whether the delay in applying the Full Code Test is reasonable in all the circumstances.

Third condition - The seriousness or the circumstances of the case justify the making of an immediate charging decision

6.8 The seriousness and the circumstances of the case should be assessed in relation to the alleged offending and should be linked to the level of risk created by granting bail.

Fourth condition - There are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case it is proper to do so

6.9 This determination must be based on a proper risk assessment, which reveals that the suspect is not suitable to be bailed, even with substantial conditions: for example, a dangerous suspect who poses a serious risk of harm to a particular person or the public, or a suspect who poses a serious risk of absconding or interfering with witnesses. Prosecutors should not accept, without careful inquiry, any unjustified or unsupported assertions about risk if release on bail were to take place.

Fifth condition - It is in the public interest to charge the suspect

6.10 Prosecutors must apply the public interest stage of the Full Code Test based on the information available at that time.

Reviewing the Threshold Test

6.11 A decision to charge under the Threshold Test must be kept under review. The prosecutor should be proactive to secure from the police the identified outstanding evidence or other material in accordance with an agreed timetable. The evidence must be regularly assessed to ensure that the charge is still appropriate and that continued objection to bail is justified. The Full Code Test must be applied as soon as the anticipated further evidence or material is received. In Crown Court cases, this should be before the indictment is lodged. 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.

Selection of Charges

7.1 Prosecutors should select charges which:

  • Reflect the seriousness and extent of the offending
  • Give the court sufficient powers to sentence and impose appropriate post-conviction orders
  • Enable the case to be presented in a clear and simple way.

7.2 This means that prosecutors may not always choose or continue with the most serious charge where there is a choice, and the interests of justice are met by selecting the lesser charge. This may include selecting a charge that:

  • Can be disposed of more quickly in the magistrates’ court, so as to provide a swift deterrent effect 
  • Avoids the cost, delay or adverse effect on any victim or witness, that may be occasioned by Crown Court proceedings.

7.3 Where relevant, prosecutors should select charges that allow an appropriate confiscation order to be made, depending on whether it should be based on benefit from particular criminal conduct or general criminal conduct. 

7.4 Prosecutors should never proceed with more charges than are necessary just to encourage a defendant to plead guilty to a few. In the same way, they should never proceed with a more serious charge just to encourage a defendant to plead guilty to a less serious one.

7.5 Prosecutors should not change the charge simply because of the decision made by the court or the defendant about where the case will be heard.

7.6 Prosecutors must take account of any relevant change in circumstances as the case progresses after charge.

Court Venue

8.1 Prosecutors must have regard to the guidelines on sentencing and allocation when making submissions to the magistrates’ court about where the defendant should be tried.

8.2 Speed must never be the only reason for asking for a case to stay in the magistrates’ court. But prosecutors should consider the effect of any likely delay if a case is sent to the Crown Court, including the possible effect on any victim or witness.

8.3 Prosecutors should bear in mind that if confiscation proceedings are required, these may only take place in the Crown Court. Summary proceedings may be committed for that purpose, where appropriate.

Venue for Trial in Cases Involving Children and Young People

8.4 Prosecutors must bear in mind that children and young people (under 18s) should be tried in the youth court wherever possible. It is the court which is best designed to meet their specific needs. Serious offences can be retained for trial in the youth court, with the power to commit for sentence if necessary. A trial of a child or young person in the Crown Court should be reserved for the most serious cases or where the interests of justice require a child or young person to be jointly tried with an adult.

Accepting Guilty Pleas

9.1 Defendants may offer to plead guilty to some, but not all, of the charges. Alternatively, they may offer to plead guilty to a different, possibly less serious, charge because they are admitting only part of the crime.

9.2 However, prosecutors must never accept a guilty plea just because it is convenient. The offences to be prosecuted should not usually be altered and prosecutors should only accept the defendant’s plea if:

  • The Full Code Test is met in respect of any different charge suggested by the defence
  • The interests of justice are met by accepting the defendant’s plea
  • The court is able to pass a sentence that matches the seriousness of the offending, particularly where there are aggravating features
  • It provides the court with sufficient powers to impose other ancillary orders, bearing in mind that these can be made with some offences but not with others.

9.3 Particular care must be taken when considering pleas which would enable the defendant to avoid the imposition of a mandatory minimum sentence.

9.4 Prosecutors should also consider, where relevant, whether the plea offered would allow an appropriate confiscation order to be made, depending on whether it should be based on benefit from particular criminal conduct or general criminal conduct.

9.5 In considering whether the pleas offered are acceptable, prosecutors should ensure that the interests and, where possible, the views of the victim, or in appropriate cases the views of the victim’s family, are taken into account when deciding whether it is in the interests of justice to accept the plea. However, the decision rests with the prosecutor.

9.6 It must be made clear to the court on what basis any plea is advanced and accepted. In cases where a defendant pleads guilty to the charges but on the basis of facts that are different from the prosecution case, and where this may significantly affect sentence, the court should be invited to hear evidence to determine what happened, and then sentence on that basis.

9.7 Where a defendant has previously indicated that they will ask the court to take an offence into consideration when sentencing, but then declines to admit that offence at court, prosecutors will consider whether a prosecution is required for that offence. Prosecutors should explain to the defence advocate and the court that the prosecution of that offence may be subject to further review, in consultation with the police or other investigators wherever possible.

Reconsidering a Prosecution Decision

10.1 People should be able to rely on decisions taken by the CPS. Normally, if the CPS tells a suspect or defendant that there will not be a prosecution, or that the prosecution has been stopped, the case will not start again. But the rights and expectations of the suspect or defendant are balanced with those of the victim and the broader public interest in bringing offenders to justice. Therefore, occasionally there are cases where the CPS will: overturn a decision not to prosecute; overturn a decision to deal with a case by way of an out-of-court disposal; or will restart the prosecution, particularly if the case is serious.

10.2 The types of cases that may give rise to reconsideration of a prosecution decision include but are not limited to:

  • Cases where a further review of the original decision shows that it was wrong and, in order to maintain confidence in the criminal justice system, a prosecution should be brought despite the earlier decision
  • Cases which are stopped so that further anticipated evidence, which is likely to become available in the fairly near future, can be collected and prepared. In these cases, the prosecutor will tell the defendant that the prosecution may well start again
  • Cases which are not prosecuted or are stopped because of a lack of evidence, but where more significant evidence is discovered later 
  • Cases where proceedings are withdrawn in the magistrates' court and a further review concludes that the Full Code Test is met and it is appropriate to reinstitute proceedings
  • Cases involving a death in which a review following the adjournment or findings of an inquest concludes that a prosecution should be brought, notwithstanding any earlier decision not to prosecute.

10.3 Victims may seek a review of certain CPS decisions not to start a prosecution or to stop a prosecution, under the Victims’ Right to Review Scheme. The scheme is an important safeguard in relation to the rule of law. Victims will be notified and provided with an explanation for any such decision and advised of their right to review. If a new decision is required, it may be appropriate to start or restart criminal proceedings.