Determining whether a prosecution or simple caution is viable and appropriate
We apply the full code test to determine whether a prosecution or simple caution is viable and appropriate. We follow guidance set by the Crown Prosecution Service when applying the tests:
- The evidential stage:
There must be enough evidence to provide a ‘realistic prospect of conviction’ against each defendant on charge.
- The public interest stage:
There may be public interest factors which are in favour of, or are against prosecutions. These have to be weighed-up before enforcement action is taken.
A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.
The evidential stage
The finding that there is a realistic prospect of conviction is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence and any other information that the offender has put forward or on which he or she may rely. It means 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. This is a different test from the one that the courts themselves must apply. A court may only convict if it sure that the defendant is guilty.
When deciding whether there is enough evidence to prosecute, the investigating officer(s), along with the departmental managers must consider the following questions:
- Can the evidence be used in court?
- Is the evidence reliable?
- Is the evidence credible?
The public interest stage
In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest.
When deciding the public interest, prosecutors should consider each flowing questions:
- How serious is the offence committed?
- What is the level of culpability of the suspect?
- What are the circumstances of and the harm caused to the victim?
- Was the suspect under the age of 18 at the time of the offence?
- What is the impact on the community?
- Is the prosecution a proportionate response?
The questions identified are not exhaustive, and not all the questions may be relevant in every case. The weight to be attached to each of the questions, and the factors identified, will vary according to the facts and merits of each case.
It is quite possible that one public interest factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and those factors put to the court for consideration when sentence is passed.