Prosecution Guidance: Consultation Principles
- Summary of our approach to consulting on prosecution guidance
- Background: consulting on prosecution guidance
- Consultation and engagement overlap, but are different
- We engage in a number of ways, of which consultation is one
- We may consult on Prosecution Guidance where the guidance is at a formative stage and we want to inform a choice we have to make
- We will always make clear the basis on which we are consulting
- We will conduct either a targeted consultation with a smaller group of stakeholders, or a public consultation where anyone can respond
- Where necessary, we will issue interim guidance and consult upon that.
Our duty is to make sure that the right person is prosecuted for the right offence, and to bring offenders to justice wherever possible.
When deciding whether or not to prosecute, who should be prosecuted, and for what charge, the CPS applies the Code for Crown Prosecutors in every case. We also apply prosecution guidance which supplements the Code in specific circumstances. This is a framework for decision-making, acknowledged as such by the courts and published for public scrutiny and accountability.
Prosecution guidance is therefore not simply a guide or an explanation of the law. The Code provides for a two-stage test for prosecutions: is there sufficient evidence to prosecute? If so, is a prosecution required in the public interest? Prosecution guidance can explain the way in which prosecutors may approach the evidence in a case. It can explain how prosecutors may exercise their discretion in decision-making, such as assessing the public interest or the selection of charges.
The CPS creates, develops and revises its prosecution guidance through stakeholder engagement in several ways. We want to understand the actual or potential impact of our policies and practices, as well as how our work is perceived by a range of communities.
Engagement is a broad term covering many ways of interacting with stakeholders, over and above the performance of our duties as a prosecuting authority. It involves listening and acting upon what we hear as appropriate. Whether or not we consult, the CPS will often engage when developing guidance and then engage when considering its impact. While we cannot engage with everyone about every aspect of our work, we do try to adopt an approach which is proportionate to our size and resources – as well as the significance of the issues involved.
All our consultations seek to apply the principles identified in R v Brent LBC ex parte Gunning  4 WLUK 200:
- consultation must be at a time when proposals are still at a formative stage
- the proposer must give sufficient reasons for any proposal to allow intelligent consideration and response
- adequate time must be given for consideration and response
- the product of consultation must be conscientiously taken into account in finalising the guidance.
Consultation is one specific example of engagement. Our rationale for consultation is the same as that for engagement set out above. However, consultation on Prosecution Guidance takes place only where the guidance is at a formative stage and we are seeking to inform, through information and insights, a clear choice we have to make. We are therefore clear about the options we have and how consultation will inform the decision we take in respect of them. It follows that we may therefore not consult on guidance as a whole but rather (a) specific element(s), and that the question (or questions) posed will be focused and limited to those necessary to inform the guidance.
We recognise that there are strongly held views in some areas of criminal law. We sometimes have to develop brand new or substantially revised guidance, or revise guidance previously consulted upon. We recognise that different groups have different experiences of the criminal justice system and are affected by prosecution decisions in different ways. We will always seek to engage, as is proportionate, in these areas and to inform ourselves through that engagement. We address our thinking about consulting and engagement when we conduct Equality Analysis. However, we will only consult if we need to choose between two or more options in order to provide guidance as to how prosecution decisions should be made. This includes being clear about the parameters of consultation: we must apply the law as made by Parliament and we must only consult on the choices that are open to us within the existing legal framework.
Public and targeted consultation
We will hold a public consultation or a targeted consultation. A targeted consultation differs from a public consultation in three respects:
- it may need to be conducted over a shorter timescale, because there is a good reason why the consultation cannot allow for as much time as a public consultation may require
- it will seek views from specific individuals or groups, often because of the specific or technical nature of the topic involved
- it will not involve published draft guidance and questions nor a CPS response
- it will nonetheless apply the principles, including the Gunning principles, set out above.
Unless and until the guidance is finalised, following consultation, the previous guidance applies. Whilst prosecutors have a duty to take into account all relevant factors (and to disregard irrelevant factors) when making a decision, which may include issues identified in a consultation or draft guidance, they must only apply the Code and the published guidance.
Sometimes, however, it is necessary to issue interim guidance. This guidance will make clear it should be applied with immediate effect but is subject to consultation. This will usually arise if there is a particular urgency to issuing the guidance, such as a change in the law.
Launching a consultation
Both public and targeted consultations will be announced publicly.
When we launch a consultation, we will make clear publicly:
- that we are consulting
- what the current guidance (if any) is
- on which areas there is a choice on which we are seeking views, information and representations (the consultation questions)
- the product we will produce following the consultation. This will usually be new or revised guidance to be applied to prosecution decisions.
We will limit documents and questions to those focused on the areas under consultation. We will use clear, non-technical language as far as possible to ensure the material is easy to understand and as accessible as possible. Where necessary we will explain the law and the context in which the guidance will operate. We will also consider whether translation, or other forms of non-written consultation, are appropriate and proportionate.
We may draw the consultation to the attention of specific people or groups. We will allow at least six weeks for responses to a public consultation. Where the specific circumstances require it – for instance, due to the complexity of the subject or the time at which the consultation is being launched – we may allow longer.
Each response will be considered on its merits. A single response with sufficient merit may lead to an amendment of the guidance. The quantity of responses will be noted but will not influence the merit of making an amendment.
The information provided in response to a consultation, whether public or targeted, and the identity of those who respond will form information which is held by the CPS as a public authority for the purposes of the Freedom of Information Act 2000. The CPS must therefore confirm to anyone who makes a request that the information is held by the CPS and provide it to them, unless one of the exemptions in the Act applies. Where an exemption applies (unless it is an absolute exemption), the information must be provided unless in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
The CPS response to consultation
The timescale for publishing our response to a consultation will vary depending on the number of responses received and the complexity of the issues involved. We endeavour to publish a response within twelve weeks of the consultation closing. We will always make clear when we have completed the consultation exercise.
As part of our response, we will make clear publicly:
- how many responses the consultation received
- a non-exhaustive summary of the responses received
- a non-exhaustive summary of how the guidance was amended in light of the consultation
- what the finalised guidance is.