1
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INTRODUCTION
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1.1
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The
decision to prosecute an individual is a serious step. Fair and effective
prosecution is essential to the maintenance of law and order. Even in a small
case a prosecution has serious implications for all involved - victims, witnesses
and defendants. The Crown Prosecution Service applies the Code for Crown Prosecutors
so that it can make fair and consistent decisions about prosecutions.
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1.2
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The
Code helps the Crown Prosecution Service to play its part in making sure that
justice is done. It contains information that is important to police officers
and others who work in the criminal justice system and to the general public.
Police officers should apply the provisions of this Code whenever they are
responsible for deciding whether to charge a person with an offence.
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1.3
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The
Code is also designed to make sure that everyone knows the principles that
the Crown Prosecution Service applies when carrying out its work. By applying
the same principles, everyone involved in the system is helping to treat victims,
witnesses and defendants fairly, while prosecuting cases effectively.
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2
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GENERAL PRINCIPLES
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2.1
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Each
case is unique and must be considered on its own facts and merits. However,
there are general principles that apply to the way in which Crown Prosecutors
must approach every case.
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2.2
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Crown
Prosecutors must be fair, independent and objective. They must not let any
personal views about ethnic or national origin, disability, sex, religious
beliefs, political views or the sexual orientation of the suspect, victim
or witness influence their decisions. They must not be affected by improper
or undue pressure from any source.
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2.3
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It
is the duty of Crown Prosecutors to make sure that the right person is prosecuted
for the right offence. In doing so, Crown Prosecutors must always act in the
interests of justice and not solely for the purpose of obtaining a conviction.
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2.4
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Crown
Prosecutors should provide guidance and advice to investigators throughout
the investigative and prosecuting process. This may include lines of inquiry,
evidential requirements and assistance in any pre-charge procedures. Crown
Prosecutors will be proactive in identifying and, where possible, rectifying
evidential deficiencies and in bringing to an early conclusion those cases
that cannot be strengthened by further investigation.
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2.5
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It
is the duty of Crown Prosecutors to review, advise on and prosecute cases,
ensuring that the law is properly applied, that all relevant evidence is put
before the court and that obligations of disclosure are complied with, in
accordance with the principles set out in this Code.
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2.6
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The
Crown Prosecution Service is a public authority for the purposes of the Human
Rights Act 1998. Crown Prosecutors must apply the principles of the European
Convention on Human Rights in accordance with the Act.
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3
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THE DECISION TO PROSECUTE
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3.1
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In
most cases, Crown Prosecutors are responsible for deciding whether a person
should be charged with a criminal offence, and if so, what that offence should
be. Crown Prosecutors make these decisions in accordance with this Code and
the Director's Guidance on Charging. In those cases where the police
determine the charge, which are usually more minor and routine cases, they
apply the same provisions.
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3.2
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Crown
Prosecutors make charging decisions in accordance with the Full Code Test
(see section 5 below), other than in those limited circumstances where the
Threshold Test applies (see section 6 below).
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3.3
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The
Threshold Test applies where the case is one in which it is proposed to keep
the suspect in custody after charge, but the evidence required to apply the
Full Code Test is not yet available.
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3.4
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Where
a Crown Prosecutor makes a charging decision in accordance with the Threshold
Test, the case must be reviewed in accordance with the Full Code Test as soon
as reasonably practicable, taking into account the progress of the investigation.
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4
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REVIEW
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4.1
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Each
case the Crown Prosecution Service receives from the police is reviewed to
make sure that it is right to proceed with a prosecution. Unless the Threshold
Test applies, the Crown Prosecution Service will only start or continue with
a prosecution when the case has passed both stages of the Full Code Test.
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4.2
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Review
is a continuing process and Crown Prosecutors must take account of any change
in circumstances. Wherever possible, they should talk to the police first
if they are thinking about changing the charges or stopping the case. Crown
Prosecutors should also tell the police if they believe that some additional
evidence may strengthen the case. This gives the police the chance to provide
more information that may affect the decision.
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4.3
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The
Crown Prosecution Service and the police work closely together, but the final
responsibility for the decision whether or not a charge or a case should go
ahead rests with the Crown Prosecution Service.
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5
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THE FULL CODE TEST
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5.1
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The
Full Code Test has two stages. The first stage is consideration of the evidence.
If the case does not pass the evidential stage it must not go ahead no matter
how important or serious it may be. If the case does pass the evidential stage,
Crown Prosecutors must proceed to the second stage and decide if a prosecution
is needed in the public interest. The evidential and public interest stages
are explained below.
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THE EVIDENTIAL STAGE
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5.2
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Crown
Prosecutors must be satisfied that there is enough evidence to provide a 'realistic
prospect of conviction' against each defendant on each charge. They
must consider what the defence case may be, and how that is likely to affect
the prosecution case.
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5.3
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A
realistic prospect of conviction is an objective test. It means that a jury
or bench of magistrates or judge hearing a case alone, properly directed in
accordance with the law, is more likely than not to convict the defendant
of the charge alleged. This is a separate test from the one that the criminal
courts themselves must apply. A court should only convict if satisfied so
that it is sure of a defendant's guilt.
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5.4
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When
deciding whether there is enough evidence to prosecute, Crown Prosecutors
must consider whether the evidence can be used and is reliable. There will
be many cases in which the evidence does not give any cause for concern. But
there will also be cases in which the evidence may not be as strong as it
first appears. Crown Prosecutors must ask themselves the following questions:
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Can
the evidence be used in court?
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(a)
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Is it likely that the evidence will be
excluded by the court? There are certain legal rules which might mean that
evidence which seems relevant cannot be given at a trial. For example, is
it likely that the evidence will be excluded because of the way in which it
was gathered? If so, is there enough other evidence for a realistic prospect
of conviction?
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Is
the evidence reliable?
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(b)
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Is there evidence which might support
or detract from the reliability of a confession? Is the reliability affected
by factors such as the defendant's age, intelligence or level of understanding?
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(c)
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What explanation has the defendant given?
Is a court likely to find it credible in the light of the evidence as a whole?
Does it support an innocent explanation?
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(d)
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If the identity of the defendant is likely
to be questioned, is the evidence about this strong enough?
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(e)
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Is the witness's background likely
to weaken the prosecution case? For example, does the witness have any motive
that may affect his or her attitude to the case, or a relevant previous conviction?
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(f)
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Are there concerns over the accuracy
or credibility of a witness? Are these concerns based on evidence or simply
information with nothing to support it? Is there further evidence which the
police should be asked to seek out which may support or detract from the account
of the witness?
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5.5
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Crown
Prosecutors should not ignore evidence because they are not sure that it can
be used or is reliable. But they should look closely at it when deciding if
there is a realistic prospect of conviction.
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THE PUBLIC INTEREST STAGE
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5.6
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In
1951, Lord Shawcross, who was Attorney General, made the classic statement
on public interest, which has been supported by Attorneys General ever since:
"It has never been the rule in this country - I hope it never will be
- that suspected criminal offences must automatically be the subject of prosecution".
(House of Commons Debates, volume 483, column 681, 29 January 1951.)
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5.7
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The
public interest must be considered in each case where there is enough evidence
to provide a realistic prospect of conviction. Although there may be public
interest factors against prosecution in a particular case, often the prosecution
should go ahead and those factors should be put to the court for consideration
when sentence is being passed. A prosecution will usually take place unless
there are public interest factors tending against prosecution which clearly
outweigh those tending in favour, or it appears more appropriate in all the
circumstances of the case to divert the person from prosecution (see section
8 below).
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5.8
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Crown
Prosecutors must balance factors for and against prosecution carefully and
fairly. Public interest factors that can affect the decision to prosecute
usually depend on the seriousness of the offence or the circumstances of the
suspect. Some factors may increase the need to prosecute but others may suggest
that another course of action would be better.
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The
following lists of some common public interest factors, both for and against
prosecution, are not exhaustive. The factors that apply will depend on the
facts in each case.
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Some
common public interest factors in favour of prosecution
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5.9
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The
more serious the offence, the more likely it is that a prosecution will be
needed in the public interest. A prosecution is likely to be needed if:
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(a)
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a conviction is likely to result in a
significant sentence;
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(b)
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a conviction is likely to result in a
confiscation or any other order;
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(c)
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a weapon was used or violence was threatened
during the commission of the offence;
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(d)
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the offence was committed against a person
serving the public (for example, a police or prison officer, or a nurse);
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(e)
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the defendant was in a position of authority
or trust;
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(f)
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the evidence shows that the defendant
was a ringleader or an organiser of the offence;
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(g)
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there is evidence that the offence was
premeditated;
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(h)
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there is evidence that the offence was
carried out by a group;
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(i)
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the victim of the offence was vulnerable,
has been put in considerable fear, or suffered personal attack, damage or
disturbance;
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(j)
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the offence was committed in the presence
of, or in close proximity to, a child;
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(k)
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the offence was motivated by any form
of discrimination against the victim's ethnic or national origin, disability,
sex, religious beliefs, political views or sexual orientation, or the suspect
demonstrated hostility towards the victim based on any of those characteristics;
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(l)
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there is a marked difference between
the actual or mental ages of the defendant and the victim, or if there is
any element of corruption;
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(m)
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the defendant's previous convictions
or cautions are relevant to the present offence;
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(n)
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the defendant is alleged to have committed
the offence while under an order of the court;
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(o)
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there are grounds for believing that
the offence is likely to be continued or repeated, for example, by a history
of recurring conduct;
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(p)
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the offence, although not serious in
itself, is widespread in the area where it was committed; or
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(q)
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a prosecution
would have a significant positive impact on maintaining community confidence.
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Some
common public interest factors against prosecution
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5.10
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A
prosecution is less likely to be needed if:
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(a)
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the court is likely to impose a nominal
penalty;
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(b)
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the defendant has already been made the
subject of a sentence and any further conviction would be unlikely to result
in the imposition of an additional sentence or order, unless the nature of
the particular offence requires a prosecution or the defendant withdraws consent
to have an offence taken into consideration during sentencing;
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(c)
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the offence was committed as a result
of a genuine mistake or misunderstanding (these factors must be balanced against
the seriousness of the offence);
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(d)
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the loss or harm can be described as
minor and was the result of a single incident, particularly if it was caused
by a misjudgement;
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(e)
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there has been a long delay between the
offence taking place and the date of the trial, unless:
• the offence is serious;
• the delay
has been caused in part by the defendant;
• the offence has only recently come to light; or
• the complexity
of the offence has meant that there has been a long investigation;
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(f)
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a prosecution is likely to have a bad
effect on the victim's physical or mental health, always bearing in
mind the seriousness of the offence;
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(g)
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the defendant is elderly or is, or was
at the time of the offence, suffering from significant mental or physical
ill health, unless the offence is serious or there is real possibility that
it may be repeated. The Crown Prosecution Service, where necessary, applies
Home Office guidelines about how to deal with mentally disordered offenders.
Crown Prosecutors must balance the desirability of diverting a defendant who
is suffering from significant mental or physical ill health with the need
to safeguard the general public;
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(h)
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the defendant has put right the loss
or harm that was caused (but defendants must not avoid prosecution or diversion
solely because they pay compensation); or
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(i)
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details may be made public that could
harm sources of information, international relations or national security.
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5.11
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Deciding
on the public interest is not simply a matter of adding up the number of factors
on each side. Crown Prosecutors must decide how important each factor is in
the circumstances of each case and go on to make an overall assessment.
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The
relationship between the victim and the public interest
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5.12
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The
Crown Prosecution Service does not act for victims or the families of victims
in the same way as solicitors act for their clients. Crown Prosecutors act
on behalf of the public and not just in the interests of any particular individual.
However, when considering the public interest, Crown Prosecutors should always
take into account the consequences for the victim of whether or not to prosecute,
and any views expressed by the victim or the victim's family.
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5.13
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It
is important that a victim is told about a decision which makes a significant
difference to the case in which they are involved. Crown Prosecutors should
ensure that they follow any agreed procedures.
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6
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THE THRESHOLD TEST
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6.1
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The
Threshold Test requires Crown Prosecutors to decide whether there is at least
a reasonable suspicion that the suspect has committed an offence, and if there
is, whether it is in the public interest to charge that suspect.
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6.2
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The
Threshold Test is applied to those cases in which it would not be appropriate
to release a suspect on bail after charge, but the evidence to apply the Full
Code Test is not yet available.
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6.3
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There
are statutory limits that restrict the time a suspect may remain in police
custody before a decision has to be made whether to charge or release the
suspect. There will be cases where the suspect in custody presents a substantial
bail risk if released, but much of the evidence may not be available at the
time the charging decision has to be made. Crown Prosecutors will apply the
Threshold Test to such cases for a limited period.
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6.4
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The evidential decision in each case will require consideration
of a number of factors including:
• the evidence available at the time;
• the likelihood and nature of further
evidence being obtained;
• the reasonableness for believing that evidence will become
available;
•
the time it will take to gather that evidence and the steps being taken to
do so;
•
the impact the expected evidence will have on the case;
• the charges that the evidence
will support.
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6.5
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The
public interest means the same as under the Full Code Test, but will be based
on the information available at the time of charge which will often be limited.
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6.6
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The
decision to charge and withhold bail must be kept under review. The evidence
gathered must be regularly assessed to ensure the charge is still appropriate
and that continued objection to bail is justified. The Full Code Test must
be applied as soon as reasonably practicable.
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7
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SELECTION OF CHARGES
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7.1
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Crown
Prosecutors should select charges which:
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(a)
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reflect the seriousness and extent of
the offending;
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(b)
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give the court adequate powers to sentence
and impose appropriate post-conviction orders; and
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(c)
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enable the case to be presented in a
clear and simple way.
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This
means that Crown Prosecutors may not always choose or continue with the most
serious charge where there is a choice.
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7.2
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Crown Prosecutors
should never go ahead with more charges than are necessary just to encourage
a defendant to plead guilty to a few. In the same way, they should never go
ahead with a more serious charge just to encourage a defendant to plead guilty
to a less serious one.
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7.3
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Crown
Prosecutors should not change the charge simply because of the decision made
by the court or the defendant about where the case will be heard.
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8
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DIVERSION FROM PROSECUTION
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ADULTS
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8.1
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When
deciding whether a case should be prosecuted in the courts, Crown Prosecutors
should consider the alternatives to prosecution. Where appropriate, the availability
of suitable rehabilitative, reparative or restorative justice processes can
be considered.
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8.2
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Alternatives
to prosecution for adult suspects include a simple caution and a conditional
caution.
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Simple
caution
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8.3
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A
simple caution should only be given if the public interest justifies it and
in accordance with Home Office guidelines. Where it is felt that such a caution
is appropriate, Crown Prosecutors must inform the police so they can caution
the suspect. If the caution is not administered, because the suspect refuses
to accept it, a Crown Prosecutor may review the case again.
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Conditional
caution
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8.4
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A
conditional caution may be appropriate where a Crown Prosecutor considers
that while the public interest justifies a prosecution, the interests of the
suspect, victim and community may be better served by the suspect complying
with suitable conditions aimed at rehabilitation or reparation. These may
include restorative processes.
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8.5
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Crown
Prosecutors must be satisfied that there is sufficient evidence for a realistic
prospect of conviction and that the public interest would justify a prosecution
should the offer of a conditional caution be refused or the offender fail
to comply with the agreed conditions of the caution.
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8.6
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In
reaching their decision, Crown Prosecutors should follow the Conditional Cautions
Code of Practice and any guidance on conditional cautioning issued or approved
by the Director of Public Prosecutions.
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8.7
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Where
Crown Prosecutors consider a conditional caution to be appropriate, they must
inform the police, or other authority responsible for administering the conditional
caution, as well as providing an indication of the appropriate conditions
so that the conditional caution can be administered.
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YOUTHS
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8.8
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Crown
Prosecutors must consider the interests of a youth when deciding whether it
is in the public interest to prosecute. However Crown Prosecutors should not
avoid prosecuting simply because of the defendant's age. The seriousness
of the offence or the youth's past behaviour is very important.
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8.9
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Cases
involving youths are usually only referred to the Crown Prosecution Service
for prosecution if the youth has already received a reprimand and final warning,
unless the offence is so serious that neither of these were appropriate or
the youth does not admit committing the offence. Reprimands and final warnings
are intended to prevent re-offending and the fact that a further offence has
occurred indicates that attempts to divert the youth from the court system
have not been effective. So the public interest will usually require a prosecution
in such cases, unless there are clear public interest factors against prosecution.
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9
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MODE OF TRIAL
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9.1
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The
Crown Prosecution Service applies the current guidelines for magistrates who
have to decide whether cases should be tried in the Crown Court when the offence
gives the option and the defendant does not indicate a guilty plea. Crown
Prosecutors should recommend Crown Court trial when they are satisfied that
the guidelines require them to do so.
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9.2
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Speed
must never be the only reason for asking for a case to stay in the magistrates'
courts. But Crown Prosecutors should consider the effect of any likely delay
if they send a case to the Crown Court, and any possible stress on victims
and witnesses if the case is delayed.
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10
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ACCEPTING GUILTY PLEAS
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10.1
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Defendants
may want to plead guilty to some, but not all, of the charges. Alternatively,
they may want to plead guilty to a different, possibly less serious, charge
because they are admitting only part of the crime. Crown Prosecutors should
only accept the defendant's plea if they think the court is able to
pass a sentence that matches the seriousness of the offending, particularly
where there are aggravating features. Crown Prosecutors must never accept
a guilty plea just because it is convenient.
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10.2
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In
considering whether the pleas offered are acceptable, Crown Prosecutors should
ensure that the interests of the victim and, where possible, any views expressed
by the victim or victim's family, are taken into account when deciding
whether it is in the public interest to accept the plea. However, the decision
rests with the Crown Prosecutor.
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10.3
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It
must be made clear to the court on what basis any plea is advanced and accepted.
In cases where a defendant pleads guilty to the charges but on the basis of
facts that are different from the prosecution case, and where this may significantly
affect sentence, the court should be invited to hear evidence to determine
what happened, and then sentence on that basis.
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10.4
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Where
a defendant has previously indicated that he or she will ask the court to
take an offence into consideration when sentencing, but then declines to admit
that offence at court, Crown Prosecutors will consider whether a prosecution
is required for that offence. Crown Prosecutors should explain to the defence
advocate and the court that the prosecution of that offence may be subject
to further review.
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10.5
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Particular
care must be taken when considering pleas which would enable the defendant
to avoid the imposition of a mandatory minimum sentence. When pleas are offered,
Crown Prosecutors must bear in mind the fact that ancillary orders can be
made with some offences but not with others.
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11
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PROSECUTORS' ROLE IN SENTENCING
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11.1
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Crown
Prosecutors should draw the court's attention to:
• any aggravating or mitigating
factors disclosed by the prosecution case;
• any victim's personal statement;
• where
appropriate, evidence of the impact of the offending on a community;
• any statutory
provisions or sentencing guidelines which may assist;
• any relevant statutory provisions
relating to ancillary orders (such as anti-social behaviour orders).
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11.2
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The
Crown Prosecutor should challenge any assertion made by the defence in mitigation
that is inaccurate, misleading or derogatory. If the defence persist in the
assertion, and it appears relevant to the sentence, the court should be invited
to hear evidence to determine the facts and sentence accordingly.
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12
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RE-STARTING A PROSECUTION
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12.1
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People
should be able to rely on decisions taken by the Crown Prosecution Service.
Normally, if the Crown Prosecution Service tells a suspect or defendant that
there will not be a prosecution, or that the prosecution has been stopped,
that is the end of the matter and the case will not start again. But occasionally
there are special reasons why the Crown Prosecution Service will re-start
the prosecution, particularly if the case is serious.
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12.2
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These
reasons include:
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(a)
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rare cases where a new look at the original
decision shows that it was clearly wrong and should not be allowed to stand;
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(b)
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cases which are stopped so that more
evidence which is likely to become available in the fairly near future can
be collected and prepared. In these cases, the Crown Prosecutor will tell
the defendant that the prosecution may well start again; and
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(c)
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cases which are stopped because of a
lack of evidence but where more significant evidence is discovered later.
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12.3
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There
may also be exceptional cases in which, following an acquittal of a serious
offence, the Crown Prosecutor may, with the written consent of the Director
of Public Prosecutions, apply to the Court of Appeal for an order quashing
the acquittal and requiring the defendant to be retried, in accordance with
Part 10 of the Criminal Justice Act 2003.
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The
Code is a public document. It is available on the CPS Website:
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Further
copies may be obtained from:
Crown Prosecution Service
Communications Branch
50 Ludgate Hill
London
EC4M 7EX
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Telephone:
020 7796 8442
Fax:
020 7796 8030
Email:
policy.branch@cps.gov.uk
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Translations
into other languages are available and audio or braille copies are available.
Please contact CPS Communications Branch (above) for details.
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