Facing criminal charges can be one of the most stressful experiences in a person’s life. The uncertainty, the fear of the unknown, and the potential consequences can be overwhelming. However, knowledge and understanding of the process can be your first step towards a strong defence.
At the heart of every criminal case in England and Wales lies a crucial decision: whether or not to bring charges against a suspect. This decision isn’t made by the police alone but by a separate body known as the Crown Prosecution Service (CPS). But what exactly does the CPS need to make this life-altering decision?
What does the CPS do?
The Crown Prosecution Service is the principal prosecuting authority in England and Wales. It is responsible for bringing criminal cases to court following investigations by the police or other investigative agencies.
The CPS’s role includes deciding which cases should proceed to prosecution. In more serious or complex matters, they also determine the appropriate charges and offer legal guidance to the police during investigations. When a case reaches court, the prosecution is either represented by a CPS lawyer or a barrister instructed by the CPS to act on their behalf.
Pre-charge engagement
Before formal charges are brought, there may be an opportunity for pre-charge engagement between the defence and the prosecution. This process allows the suspect and their legal representative to engage with the police and prosecution, providing an opportunity to comment on the evidence, suggest lines of inquiry, or share information that could affect the charging decision.
Pre-charge engagement can be beneficial as it may:
- Reduce the number of cases where a charge is brought unnecessarily
- Narrow the issues for trial
- Help make more effective use of court time
- Lead to earlier resolution of cases
At Lawtons, we actively participate in pre-charge engagement when appropriate, working to protect our client’s interests from the earliest stages of an investigation.
What evidence does the CPS need to charge?
However, if pre-charge engagement does not go ahead or is not appropriate or successful, the CPS will follow strict guidelines when deciding whether to charge an individual with a criminal offence. These guidelines are outlined in the Code for Crown Prosecutors, which sets out the principles prosecutors must follow.
Full code test
In most cases, the CPS applies the Full Code Test to determine if a prosecution should proceed. This test consists of two stages: the evidential stage and the public interest stage.
Evidential stage
During the evidential stage, prosecutors must be satisfied that sufficient evidence provides a realistic prospect of conviction. This means that an objective, impartial and reasonable jury, magistrate or judge, properly directed and acting under the law, is more likely than not to convict the defendant of the charge alleged.
To meet this threshold, the CPS considers various types of evidence, including:
- Witness statements
- Physical evidence (e.g., DNA, fingerprints)
- CCTV footage
- Digital evidence (e.g., emails, social media posts)
- Expert testimony
- Documentary evidence
Prosecutors must also consider the reliability and credibility of the evidence and any potential legal issues that could affect its admissibility in court.
Public interest stage
Once the evidential stage is met, the police or CPS must assess whether prosecution is in the public interest. The prosecutor considers whether pursuing a case benefits the public more than not prosecuting. This involves determining if an out-of-court disposal, such as a fixed penalty notice or police caution, would be more appropriate.
Key questions in deciding public interest include:
- How serious is the offence?
- What is the suspect’s culpability?
- What harm was caused to the victim?
- What was the suspect’s age and maturity at the time?
- What is the community impact?
- Is prosecution proportionate?
- Do information sources need protection?
These factors aren’t exhaustive or equally weighted, meaning one may outweigh the others. If the Full Code Test isn’t met, alternative steps like bail, release, or no further action are considered.
The threshold test
In some cases, where not all evidence is available but there are reasonable grounds to believe that further evidence will become available, the CPS may apply the Threshold Test. This allows for a person to be charged and brought before the court, usually to be held in custody, while the investigation continues.
The Threshold Test requires:
- Reasonable suspicion that the person has committed the offence
- Reasonable grounds to believe that continuing the investigation will provide further evidence within a reasonable period
- Substantial grounds to object to bail
- The seriousness or circumstances of the case justify making an immediate charging decision
- It is in the public interest to charge the suspect
What happens if the CPS doesn’t have enough evidence to charge?
If the CPS determines there isn’t sufficient evidence to charge, several outcomes are possible:
- The case may be dropped entirely
- The police may be asked to gather more evidence
- A lesser charge might be considered if there’s enough evidence for that
- Alternative out-of-court disposals might be considered (e.g., cautions)
It’s important to note that a decision not to charge doesn’t necessarily mean the end of an investigation. New evidence may come to light, leading to a review of the case.
Can the police charge without the CPS?
While the police have the authority to charge certain less serious offences without consulting the CPS, for most significant crimes, they must refer the case to the CPS for a charging decision. This ensures that prosecutions are brought only when there’s a realistic prospect of conviction and it’s in the public interest to do so.
However, in some urgent cases, the police may charge a suspect before consulting the CPS, particularly if it’s necessary to prevent the suspect from being released on bail. In fact, the following types of cases must always be referred to the CPS:
- Cases involving a death
- Matters related to terrorism or breaches of official secrets
- Cases classified as hate crimes or domestic violence
- Incidents resulting in Grievous Bodily Harm (GBH), wounding, or Actual Bodily Harm (ABH)
- Sexual offences involving individuals under the age of 18
- Cases linked to the Licensing Act 2003
At Lawtons, we understand that facing potential criminal charges can be a daunting experience. Our experienced team of solicitors is here to provide expert guidance and robust defence throughout the legal process. We’ll work tirelessly to protect your rights and achieve the best possible outcome for your case.
If you’re concerned about potential charges or need legal advice, don’t hesitate to contact Lawtons.