cp149 Consents to Prosecution consultation - Law Commission

with the original charges, or different charges, or whether it should be stopped, is
governed by the principles set out in the Code for Crown Prosecutors: 50
Proceedings are usually started by the police … . Each case that the
police send to the Crown Prosecution Service is reviewed by a Crown
Prosecutor to make sure that it meets the tests set out in this Code. 51
1.15 The Code sets out a statement of general principles which includes the
requirement that Crown Prosecutors should be “fair, independent and objective”
and that they should not let their personal views of a defendant’s, victim’s or
witness’s “ethnic or national origin, sex, religious beliefs, political views or sexual
preference” influence their decisions. 52
It sets out a two-part test which is applied
to all cases under review. The test comprises the evidential test and the public
interest test. 53
1.16 The evidential test is an objective test which requires an assessment of whether
“there is enough evidence to provide a ‘realistic prospect of conviction’ against
each defendant on each charge”. 54
By “realistic prospect of conviction”, it is meant
that “a jury or bench of magistrates, properly directed in accordance with the law,
is more likely than not to convict the defendant of the charge alleged”. 55
1.17 The public interest test is considered only if the evidential test is passed. It involves
the prosecutor balancing factors for and against prosecution, 56
and the Code
provides some guidance as to which factors should be considered. 57
It is assumed
that “[t]he more serious the offence, the more likely it is that a prosecution will be
needed in the public interest” 58
and, therefore, “[i]n cases of any seriousness, a
prosecution will usually take place unless there are public interest factors tending
against prosecution which clearly outweigh those tending in favour”. 59
1.18 Factors favouring prosecution include, for example, 60
the fact that a conviction is
likely to result in a significant sentence; that a weapon was used or violence
50 Issued under s 10 of the POA 1985. The most recent Code was issued in June 1994,
replacing the previous version published in January 1992. It is set out in Appendix C below.
The Code is more fully explained in an accompanying Explanatory Memorandum (June
1994). See also R K Daw, “The ‘Public Interest’ criterion in the decision to prosecute”
(1989) 53 J Crim L 485; A Ashworth and J Fionda, “The New Code for Crown
Prosecutors: (1) Prosecution, Accountability and the Public Interest” [1994] Crim LR 894;
R K Daw, “(2) A Response” [1994] Crim LR 904.
51 Code for Crown Prosecutors, para 3.1.
52 Ibid, para 2.3.
53 Ibid, paras 4.1 and 4.2.
54 Ibid, para 5.1.
55 Ibid, para 5.2.
56 Ibid, para 6.2.
57 Ibid, paras 6.4 - 6.9.
58 Ibid, para 6.4.
59 Ibid, para 6.2.
60 Ibid, para 6.4.
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