Important consultation impacting the decision to prosecute

United Kingdom

On 23 July 2018, the outgoing Director of Public Prosecutions launched a consultation in England and Wales on a proposed revision of the Code for Crown Prosecutors (the “Code”). The Code is a key document which prosecutors must consider when deciding whether to charge a suspect with a criminal offence. Given recent issues surrounding disclosure in criminal cases, some changes are suggested to try to ensure that all relevant material is considered prior to making the prosecution decision. There are other important proposals including consideration of proceeds of crime in the decision to charge and selecting the appropriate charge.  The consultation closes on 17 September 2018. 

Significance

The Code is issued by the Director of Public Prosecutions as head of the Crown Prosecution Service, but other prosecutors such as the Environment Agency, the HSE, the Serious Fraud Office and the Financial Conduct Authority follow the Code, either through convention or because they are required to do so by law.

Pursuant to the Code, prosecutors must be satisfied that they can meet the “Full Code Test”, before commencing (or continuing) a prosecution.  Normally, this should be assessed only after the investigation has been completed and after all the available evidence has been reviewed.  The test operates in two stages – an evidential stage and, if met, a public interest stage.  For the evidential stage a prosecutor must be satisfied that there is sufficient evidence to provide a "realistic prospect of conviction" against each defendant on each count (on the balance of probabilities).  If so, then a prosecution will normally be commenced unless the prosecutor is sure that public interest factors tending against prosecution outweigh those tending in favour.

Therefore, a key element in the decision to prosecute is whether the evidence is sufficient to support bringing changes.  That includes an assessment of its admissibility, reliability and credibility.  The consultation proposes that it should also involve a consideration “at this stage and throughout the case whether there is any material that may affect the assessment of the sufficiency of evidence, including unexamined material in the possession of the police, and material that may be obtained through further enquiries”.

Prosecutors should identify and, where possible, seek to rectify evidential weaknesses, but, subject to the Threshold Test (which can be used as an exception in the case of individual suspects who present a substantial bail risk), they should stop cases which do not meet the evidential stage of the Full Code Test and which cannot be strengthened by further investigation, or where the public interest clearly does not require a prosecution.

The draft amendments to the Code also place more emphasis on prosecutors considering whether there are proceeds of crime arising from the offending and how best to deal with the case in light of those proceeds, including as to ensuring they can be confiscated post conviction. 

The draft also includes:

  • expanded guidance on the public interest factors relevant to the assessment of the Full Code Test, including: references to a lower culpability level if the suspect has been compelled, coerced or exploited, particularly if the suspect is a victim of a linked crime; expanded hate crime factors; and wider consideration of the negative effect of a prosecution on victims
  • Guidance on the consideration to be given to any relevant prosecution or enforcement policy of other prosecutors or Government departments who have jurisdiction to prosecute.
  • The approach to be taken where the law differs between England and Wales.        

Questions posed

The Consultation seeks responses to four questions, based on the revised draft:

  1. Do you agree that when deciding whether there is sufficient evidence to prosecute, prosecutors should consider whether there is any other material that may affect the sufficiency of evidence?
  2. Do you have any views on the revised Threshold Test?
  3. Prosecutors are required to consider a suspect’s / defendant’s proceeds of crime when deciding whether to charge, when selecting charges, when making submissions on court venue and when a defendant offers a plea. Do you have any observations on these requirements?
  4. Do you have any further comments on the proposed revisions to the Code?

The Consultation also invites any other comments on the proposals.

Consultation Documents

https://www.cps.gov.uk/publication/code-crown-prosecutors-2018-consultation