The Crown Prosecution Service (CPS) commissioned the Bingham Centre for the Rule of Law to undertake independent research looking at how prosecutors in countries with similar legal frameworks discontinue criminal prosecutions.

The study examined how the legal frameworks operating in Queensland, New South Wales and Victoria in Australia, and in New Zealand stop cases by “discontinuing” them. It explored how those jurisdictions balance prosecutorial discretion, judicial oversight, victims' rights and protections for defendants.

Why is this important?

Prosecutors have a continuing duty to review cases and to stop proceedings where the evidential or public interest tests are no longer met. In the Crown Court in England and Wales, which deals with the most serious offences, the current mechanism to stop a case is to ‘offer no evidence’. This means the defendant is acquitted and the case cannot be reinstituted (save for truly exceptional circumstances). This has significant implications for victims, defendants and public confidence in the criminal justice system.

By contrast, discontinuing a case does not result in final acquittal and means that in rare circumstances – such as a Victims’ Right to Review being upheld – the case can be reinstituted. The ability of prosecutors to use this method is more extensive in the states examined in Australia, and in New Zealand. The legal mechanisms available to bring proceedings to an end differ across jurisdictions and, in some cases, vary depending on the stage a case has reached.

The research was commissioned to support understanding of how comparable jurisdictions approach prosecutorial discontinuance, including the safeguards they apply and how those arrangements operate in practice.

What the research examined

The research considered:

• when prosecutors may discontinue proceedings;
• whether proceedings can subsequently be reinstated;
• the safeguards that apply to defendants;
• judicial oversight and accountability mechanisms;
• arrangements for reviewing prosecution decisions; and
• the relationship between review mechanisms and victims' rights.

It focused on four comparable common law jurisdictions and examined both the legal framework and available evidence about operational use, and conducted interviews with experts and senior lawyers experienced in prosecution and defence roles.

Key findings

There is no single approach

The research found that countries use different approaches when deciding how and when a criminal case can be discontinued.  Each system seeks to balance the interests of victims, defendants and the wider public.

In all the approaches examined, the existence and use of broader discontinuance powers was widely accepted as operating without issue.

Wider discontinuance powers are not uncommon

The research found that broader discontinuance powers operate in several comparable legal systems, including some parts of Australia and New Zealand. This meant proceedings could be discontinued at a later stage than is currently possible in England and Wales.

Safeguards are a common feature

The research found that jurisdictions generally combine prosecutorial flexibility with safeguards designed to protect fairness, legal certainty and defendants' rights. These safeguards vary between legal systems but commonly include procedural controls, judicial powers and mechanisms to prevent unfair prejudice.

Reinstatement of proceedings appears to be uncommon

While some jurisdictions permit proceedings to be reinstated following discontinuance, the research indicates that these powers are generally used sparingly and within established legal frameworks. Available evidence suggests that reinstatement remains the exception rather than the norm. Reinstatement requires a substantive justification, such as a finding on review that the original decision was wrong.

Further information

The Bingham Centre for the Rule of Law carries out independent, non-partisan research on rule of law issues and forms part of the British Institute of International and Comparative Law (BIICL). The findings published in this study are those of the Bingham Centre. The full report, "Discontinuation of Prosecutions: A Comparative Study of Three Australian States and New Zealand", can be accessed on their website.