Persuading the prosecution to drop a case when it is not in the public interest to prosecute

Written 12th September 2019 by Ruth Peters

Over the years we have dealt with a vast number of clients who have been charged with relatively minor offences but for whom the consequences of a conviction are enormous.  In some cases charges have been brought without the input of a Crown Prosecution Service lawyer, the decision to charge having been made by the police. In other cases, decisions have been made by the CPS but without full knowledge of all the facts that could have been put forward on behalf of a suspect.

The Code for Crown Prosecutors

Under the Code for Crown Prosecutors a prosecution should only take place if the ‘Charging Standard’ is met. This means, firstly there must be a ‘realistic prospect of a conviction’ and secondly that it is in the public interest to prosecute. Once a decision to prosecute has been made the Crown Prosecution Service should continue to consider whether the Charging Standard is met. So, if a case against a suspect becomes weaker and there is no longer a ‘realistic prospect of a conviction’ then a case should be discontinued.  Similarly, if material can be presented to the CPS that supports an argument that a prosecution is not in the public interest, then consideration should be given to abandoning a prosecution.

In other words, just because the evidence is strong, a prosecution should not automatically follow. Having considered the strength of the evidence, a prosecutor should always go on to consider whether a prosecution is in the public interest.

What should the prosecution consider when making a decision to charge?

A prosecutor may feel that the public interest factors against prosecution outweigh those in favour of a prosecution. Factors which a prosecutor should consider are;

  • the seriousness of the offence
  • the level of culpability of a suspect
  • the circumstances of and harm caused to a victim
  • a suspect’s age and maturity at the time of the offence
  • the impact on the community
  • whether a prosecution is a proportionate
  • whether sources of information require protecting.

What does ‘in the public interest’ mean?

Frequently a charging decision is made without knowledge of all the public interests factors. There are frequently factors relating to a suspect of which the prosecution were unaware, for example their health, or perhaps an impairment that may have impacted upon the understanding of the seriousness of the situation. A suspect may have subsequently sought treatment for a problem, which in turn reduces the risk of re offending. In some situations it may become apparent that a victim does not wish to see a suspect criminalised for their actions. A prosecution may have a disproportionate impact upon a suspect, including loss of livelihood, professional disciplinary proceedings, the inability to travel to certain countries and the involvement of the Disclosure and Barring Service.

Often defendant’s attend court assuming that they must enter a guilty plea and then deal with the potentially far reaching consequences. They may feel that they have to plead guilty quite simply because they are guilty. However, in many cases, we have successfully argued that these matters should be adjourned to allow for the preparation of formal representations.  Even when there appears to be evidence of guilt, it may be possible to argue against a charging decision and ask for a view to be taken on the basis of public interest grounds. 

Detailed and sympathetic representations should be considered by the Crown Prosecution Service in all situations where the defence ask for time to make such representations. They can make the difference between a conviction, perhaps for a minor offence, but with unintended yet life altering consequences and no conviction at all.

When should representations be made?

Timing is important. The difficulty with a case being dropped due to it not being in the public interest to prosecute is that the window for the decision being made may often be a narrow one. A prosecutor may decide to abandon a case at any time. Cases where there is no longer a ‘realistic prospect of a conviction’ are, by there very nature, denied matters which will go to trial. This gives the defence ample opportunity to make representations to the prosecution. Cases where it is not in the public interest to prosecute may well be admitted matters, a court date may be imminent yet there may be a significant amount of material to be put  forward on behalf of a suspect or a defendant. Timing is therefore crucial and it is important that suspects or defendants and their legal teams act quickly.

What if I haven’t been charged yet?

Olliers have considerable experience of acting for those who have been released under investigation following an arrest or a voluntary interview. Prior to and following an interview under caution, our specialist lawyers will do everything we can to keep to a minimum the likelihood of a client under investigation being charged with a criminal offence. We are particular adept at putting forward pre-charge representations to the Crown Prosecution Service and have notable success in making submissions that the full code test has not been met, challenging the credibility, reliability and admissibility of any prosecution evidence at an early stage, ensuring that the CPS is fully informed of a suspect’s defence from his/her perspective rather than that of a police officer and acting pro-actively to secure evidence. Click here to read more.

How can Olliers help? 

Due to the work involved in collating all relevant information, reviewing the case papers and drafting the letter of representations to the Crown, we are only able to act in such cases on a privately funded basis.

Ruth Peters

Ruth Peters

Business Development Director


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