The Decision to Prosecute

Where there is sufficient evidence to charge the suspect this will be done at the police station and they will be given conditional or unconditional bail or be reprimanded at the police station. The decision to charge or to offer an alternative course of action is a decision taken by the CPS and the custody officer under the Criminal Justice Act 2003. The decision to charge is based on two tests in the CPS Code for Crown Prosecutors which can be outlined as follows:

Evidential test:  The question that is asked is whether there is sufficient evidence for a realistic prospect of conviction. The CPS must be able to answer in the affirmative whether the jury or magistrates after direction on the law would convict the defendant of the offence charged. The evidence must be relevant, reliable and admissible. And must go to proving all elements of the actus reus and mens rea of the offence.

Public interest test: This will be applied after the evidential test has been satisfied. Is it in the public interest to prosecute the defendant. Some public interest factor in favour of prosecution would include:

  • A conviction likely to result in a significant sentence
  • A weapon was used or violence threatened during commission of the offence
  • The offence was committed against someone working with the public eg. Police officer bus conductor nurse etc.
  • The defendant was in a position of authority or trust
  • There is evidence that the offence was premeditated or carried out by a group

Public interest factors against a prosecution includes:

  • The court is likely to impose only a nominal penalty
  • The suspect committed the offence under genuine mistake although this would be weighed up against the seriousness of the offence

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Alternatives to prosecution

An adult may instead of being charged receive a caution or conditional caution. A juvenile under 18 may be given a reprimand or final warning.

Simple caution:  this may be an appropriate cause of action where the evidence is sufficient to bring criminal proceedings, the offender admits guilt and the offender agrees on the understanding that if there is reoffending the caution may be brought to the attention of the court. Vulnerable detainees are more likely to receive a simple caution. These would include the, infirm, elderly and detainees suffering from mental or physical disability.

Conditional Caution: A defendant may receive a conditional caution where he is over 18, admits the offence to an authorised person and in the opinion of the CPS there is sufficient evidence to charge. If he fails to comply with the conditions he may be prosecuted for the original offence. The conditions that are attached to the caution must be appropriate to the offence, proportionate and achievable. They may include requiring the defendant to attend drug/alchohol rehabilitation course, anger management course or to make good damage to property such as cleaning graffiti.

How you can influence a decision to charge: You must be prepared to make representations against your client being charged where the evidence presented at the police station is weak. If this is the case you must persuade the custody officer to release your client unconditionally or on police bail.