The Crown Prosecution Service

What is the CPS

The CPS stands for Crown Prosecution Service. It is a non-ministerial government department responsible for prosecuting criminal cases investigated by the police in England and Wales on behalf of the State. The CPS will co-operate with the investigating and prosecuting agencies of other jurisdictions and its role is in fact similar to that of the Crown Office in Scotland and the Public Prosecution Service in Northern Ireland.The CPS is headed by the Director of Public Prosecutions (DPP) who is answerable to the Attorney General for England and Wales.  The Attorney General, in turn, is accountable to Parliament for the service provided by the CPS.

Brief history of the CPS

The Prosecution of Offences Act 1985 was implemented following Royal Commission recommendations that there be a single unified Crown Prosecution Service with responsibility for all public prosecutions in England and Wales. This led to the department of the DPP merging with the existing police prosecutions department which in turn established the CPS under the direction of the DPP. The CPS started to operate in 1986. A further review of the CPS was carried out in 1999 which led to the geographical re-organisation from 14 to 42 areas. This followed the boundaries of the police forces, except in London, where the area covers the boundaries of both the Metropolitan Police and the City of London Police. Each separate area is headed by a Chief Crown Prosecutor. Following the Criminal Justice Act 2003 the power of the police to charge for all but the most minor offences was transferred to the CPS. In 2006, with the creation of the Serious Organised Crime Agency, the CPS also became responsible for the prosecution of cases investigated and charged by that body.

What does the CPS do

As the principal prosecuting authority in England and Wales the CPS is responsible for criminal cases beyond the police investigatory stage. The CPS will advise the police on cases for possible prosecution, review cases submitted by the police, determine any charges in all but minor cases, prepare cases for court and present cases at court, both in the Magistrates and the Crown Court. Primarily, the CPS will review the evidence gathered by the police and provide guidance. During pre-charge procedures and throughout the investigative and prosecuting process the CPS may assist the police by explaining what additional work or evidence could raise the case to a viable charging standard thereby rectifying any evidential deficiencies. Once the evidence is gathered the CPS will then decide, on the basis of this evidence, whether a case should be pursued or dropped. In the event that the CPS is satisfied that there is enough evidence to prosecute, they will do so either in the Magistrates Court and, if the case needs to go to Crown Court, they will instruct an independent advocate to prosecute for them or, increasingly, they may use their own in-house higher court advocates. Although the Crown Prosecution Service works closely with the police, it is independent of them and except for very minor cases, the decision whether or not to prosecute a case rests with the CPS. The independence of the CPS is of fundamental constitutional importance. Casework decisions must be taken by Crown Prosecutors with fairness, impartiality and integrity so as to help deliver justice for victims, witnesses, defendants and the public.

The Code for Crown Prosecutors

The Code for Crown Prosecutors is issued by the DPP under section 10 of the Prosecution of Offences Act 1985 andgives guidance on the general principles to be applied when Crown Prosecutors make decisions about prosecutions. In cases where the police determine the charge, which as previously indicated are usually more minor and routine cases, the police should also apply the provisions of this Code.

The latest Code is the fifth edition and replaces all earlier versions. The Code is a public document andcan be accessed on the CPS official website. It is available in a number of different languages including English, Welsh, Bengali, Chinese, Gujarati, Hindi, Punjabi, Russian and Urdu. The Code for Crown Prosecutors sets out the basis upon which prosecutions are refused, discontinued or proceeded with. It is intended to ensure that decisions about prosecutions are fair, independent, objective and consistent and that the prosecutions themselves are fair and effective. Whilst each case is unique and must be considered on its own facts and merits, there are general principles that apply to the way in which Crown Prosecutors must approach cases:

  • Crown Prosecutors must be fair, independent and objective and not be influenced by personal views about the suspect, victim or witness nor be affected by improper or undue pressure from any source.

  • It is the duty of Crown Prosecutors to make sure that the right person is prosecuted for the right offence, acting in the interests of justice and not solely for the purpose of obtaining a conviction. 

  • Crown Prosecutors should provide guidance and advice to investigators throughout the investigative and prosecuting process and continually review cases in light of any changes in circumstances or evidence.

  • It is the duty of Crown Prosecutors to ensure that the law is properly applied to cases, all relevant evidence is put before the court and that obligations of disclosure are complied with. 

  • The Crown Prosecution Service is a public authority for the purposes of the Human Rights Act 1998 and so Crown Prosecutors must apply the principles of the European Convention on

Human Rights in accordance with the Act.

The basis upon which the CPS make decisions to prosecute

The decision as to whether a person should be charged with a criminal offence and what that offence should be are made in accordance with the Full Code Test (section 5 of the Code for Crown Prosecutors), unless in limited circumstances the Threshold Test applies (section 6 of the Code). The Threshold Test can be applied where it is inappropriate to release the suspect on bail but sufficient evidence is not yet available at the time the charging decision has to be made to apply the Full Code Test. However, there must be at least a reasonable suspicion that the suspect has committed an offence, and if so, it is in the public interest to charge that suspect. As there are statutory limits that restrict the time a suspect may remain in police custody, Crown Prosecutors can only apply the Threshold Test for a limited period and the case must be reviewed in accordance with the Full Code Test as soon as reasonably practicable. The Full Code Test is two-stage, where the CPS will only prosecute a case if, i) there is sufficient evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge and, ii) it is in the public interest to bring the case to court. When deciding whether there is sufficient evidence, Crown Prosecutors consider both whether the evidence can be used in court and whether it is reliable. In deciding whether it is in the public interest Crown Prosecutors must weigh those factors in favour of and against prosecution carefully and fairly although the more serious offences are more likely to be regarded as in the public interest. Whilst the CPS does not act for victims or families of victims, but rather on behalf of the public, 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 their family.

Factors for prosecuting include where cases are likely to result in significant sentences; involve the use of violence; the offence was committed against a person serving the public, e.g., a nurse, or against a vulnerable person, e.g., the elderly or a child; the offence was premeditated, carried out by a group or motivated by a form of discrimination; the defendant has committed similar offences and/or the offending is likely to recur; and so on.

Factors against prosecuting include where cases are likely to result in only a nominal penalty, the offence was committed as a result of a genuine mistake or misunderstanding, the loss and/or harm can be described as minor, a prosecution is likely to have a bad effect on the victim; 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 defendant has rectified the loss/harm caused (although defendants must not avoid prosecution solely because they pay compensation); or details may be made public that could harm sources of information, international relations or national security.

Alternatives to prosecution

When deciding whether a case should be prosecuted, Crown Prosecutors should consider the alternatives to prosecution such as a simple caution and a conditional caution. In the case of youths, whilst Crown prosecutors should not avoid prosecuting simply because the defendant is young, this is a factor to be taken into account whilst having regard to the seriousness of the offence or the youth’s past behaviour. Cases involving youths are usually only referred to the Crown Prosecution Service 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.

Accepting guilty pleas

Where defendants want to plead guilty to some but not all the charges or to a different, possibly less serious charge because they only accept certain facts, 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. Crown Prosecutors must not accept a guilty plea simply because it is convenient. Any decision as to whether it is in the public interest to accept a plea should always take into account the views of the victim or victim’s family, although ultimately the final decision rests with the CPS.

The role of the CPS in sentencing

Crown Prosecutors should assist the court by drawing attention to any aggravating or mitigating factors disclosed by the prosecution case, any victim personal statement, where appropriate evidence of the impact of the offence on a community, any relevant statutory provisions or sentencing guidelines and any relevant statutory provisions relating to ancillary orders (such as anti-social behaviour orders). The Crown Prosecutor should also challenge any assertion made by the defence in mitigation that is inaccurate, misleading or derogatory.