For anyone facing a criminal investigation it is important to understand the requirements that must be met before a prosecution can commence.
It is during the investigation stage, that the opportunity for a proactive defence strategy arises.
The Code for Crown Prosecutors (the Code) is issued by the Director of Public Prosecutions under s.10 of the Prosecution of Offences Act 1985.
The Code for Crown Prosecutors details the general principles for Crown Prosecutors to abide by during decision making on cases. To charge a suspect or to offer an alternative such as an out of court disposal, the CPS/other prosecuting body consider the two stage test as follows:
Is there sufficient evidence against a defendant to provide a realistic prospect of conviction
Paragraph 4.7 of the Code for Crown Prosecutors defines a ‘realistic prospect of conviction as follows:
‘that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged’.
The standard of proof is far lower than the that required to convict at trial. The Crown must satisfy themselves that there is sufficient evidence for a ‘realistic prospect of conviction’ against a defendant.
The Crown need to consider the strength of the evidence and whether it can be used in Court. They must consider whether the evidence is reliable and credible and whether there is material which could impact on the evidence. This includes assessing any defence which has been put forward.
If the Crown determine there is insufficient evidence, then no prosecution can go ahead. If the Crown consider that there is sufficient evidence to provide a realistic prospect of conviction, then it must progress to the next question.
Is it in the public interest for the Crown to bring the matter to court?
A prosecution will generally proceed unless there are public interest factors against a prosecution which outweigh the factors in favour of a prosecution proceeding.
The code details that in certain cases the “prosecutor may be satisfied that the public interest can be by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal rather than bringing a prosecution.”
Prosecutors must consider several guidance factors detailed in the Code for Crown Prosecutors (paragraph 4.14 A-G)
Public interest factors to be taken into account are:
- Seriousness of alleged offence
- Level of culpability of the suspect
- Circumstances and harm caused to the victim
- Suspects age and maturity at time of offence
- The impact on the community
- Is a prosecution a proportionate response to the likely outcome?
- Do sources of information require protecting?
The fact that all enquiries do not need to be bottomed out before decision is made
It may be appropriate to ask the police to justify what enquiries are remains outstanding and how they can have a material impact on a charging decision and for an expected timeframe for these enquiries to be completed. It is important to make it clear that all of the enquiries necessarily need to be completed in all cases. Click here to read more.
Opportunity for defence input
Pre-charge engagement is encouraged by the Code for Crown Prosecutors and it is acknowledged that it may have an impact in decisions as to charge or not (the Code for Crown Prosecutors para 3.4).
The ‘Attorney General’s review of the efficiency and effectiveness of Disclosure in the criminal justice system (2018)’ recognised that; there is a “gap pre-charge where;
(i) If the defence knew more about prosecuting cases they might volunteer more information, and
(ii) If the investigator and prosecutor knew about that information it would help them to identify new lines of enquiry, particularly in relation to where exculpatory material might be on a digital device or social media”.
At Olliers, our strategy is to bring the investigation into a suspect to an early conclusion with successful representations against charge.
We do this by arguing either that there is not a ‘realistic prospect of a conviction’ or that a prosecution is not in the ‘public interest’.
Article written by James Claughton
James has a particular interest in the investigation stage of criminal cases. He has a growing caseload of cases involving pre-charge engagement and regularly makes representations against charge on behalf of clients under investigation.