Prosecution

Prosecution is, in essence, the decision to take a criminal case to court for a trial to take place. After a decision has been taken that a prosecution will go ahead, a defendant will appear in court and will have the opportunity to enter a plea of guilty or not guilty. If they plead not guilty, then a full contested trial takes place; if they plead guilty then they will be sentenced for the offence which they have admitted through the guilty plea. But let’s step back to the actual decision to prosecute. There are a number of organisations or agencies which have the authority to bring prosecutions.

Some of these are in specialised areas – for example, the Health and Safety Executive, the Environment Agency, the Serious Fraud Office, and even the Royal Society for the Prevention of Cruelty to Animals all have their powers to prosecute in their particular fields. Interestingly, even a private citizen can try to bring a prosecution – although this can be difficult and it does not happen very often. The main organisation responsible for bringing prosecutions in England and Wales is the Crown Prosecution Service – the CPS. The CPS was created by an Act of Parliament – the Prosecution of Offences Act 1985 – following a recommendation from the Royal Commission on Criminal Procedure, which reported in 1981.

The Royal Commission had recommended that an independent prosecuting body should be created. Prior to that, many decisions to prosecute were taken by the police, who were also responsible for investigating offences. The Royal Commission wanted to separate the functions of investigation and prosecution, to promote fairness. There was concern that the police were making too many poor decisions about prosecution and that too many weak cases were being brought to court. The theory is that by being independent from the police, the CPS do not have the same kind of vested interest in the case, and are in a better position than the police to decide whether a case should go ahead to court.

When a case file is given to the CPS by the police, the prosecutor in charge of the case has to have regard to two key questions. First, is there enough evidence for a prosecution to go ahead. So, there might have been enough evidence to justify investigating a suspect – but that is not the same as saying that there is enough evidence for a prosecution to proceed. A prosecutor will ask themselves, ‘is there enough evidence for a realistic prospect of conviction?’ So – if this case went to court – does the prosecutor, trying to be objective, think that it is more likely than not that the defendant would be convicted?

(Of course, whether the defendant is convicted is ultimately a question for the trial court itself.) And, second, even if the evidential sufficiency test is passed, the prosecutor will ask whether it is in the public interest for a prosecution to go ahead. So, there might be ample evidence that a suspect has committed an offence, but there may be reasons why a prosecution would not be appropriate. Perhaps even though the evidence points towards a suspect having committed a crime, it is clear that they were not especially blameworthy or perhaps they did not cause anything more than very minor damage; perhaps, all things considered, a prosecution would be a disproportionate response.

Just because there is enough evidence to support a prosecution, doesn’t mean that it will necessarily go ahead. These two tests – the evidential sufficiency test and the public interest test, are set out in the key CPS text, The Code for Crown Prosecutors.