Chapter Updates

UPDATES NOVEMBER 2007

Chapter 1.3.5:  Written charge and requisition (pp 4-6)

Section 29 of the CJA 2003, s. 29, which creates (in the case of public prosecutions only) a new method of commencing criminal proceedings, has been brought into force in certain areas only (in that it applies only to magistrates' courts sitting in specified locations) by the Criminal Justice Act 2003 (Commencement No.16) Order 2007 (SI 2007 No 1999).

Chapter 1.6.3 Charging the suspect (pp 16-18)

According to the DPP's Guidance on Charging (http://www.cps.gov.uk/publications/directors_guidance/dpp_guidance.html), the police may charge (subject to certain exceptions) any summary or either-way offence where the accused is expected to plead guilty and also some less serious offences — such as Bail Act offences, less serious Road Traffic offences, and offences punishable with less than months' custody — even where the suspect is expected to plead not guilty.

The DPP's Guidance says, in section 2 (Key Provisions and Principles of this Guidance):

• Crown Prosecutors will determine whether a person is to be charged in all indictable only, either way or summary offences subject to those cases specified in this Guidance which the police may continue to charge.
• Charging decisions by Crown Prosecutors will be made following a review of evidence in cases and will be in accordance with this Guidance.
• Custody Officers must comply with this Guidance in deciding how a person is to be dealt with in accordance with s 37(7) PACE, as amended by Schedule 2 to the Criminal Justice Act 2003.
• Crown Prosecutors will seek to identify and resolve cases that are clearly not appropriate for prosecution at the earliest opportunity on consideration of whatever material is available.
• Crown Prosecutors will provide guidance and advice to investigators throughout the investigative and prosecuting process. This may include lines of enquiry, evidential requirements and assistance in any pre-charge procedures. Crown Prosecutors will be pro-active in identifying, and where possible, rectifying evidential deficiencies and in bringing to an early conclusion those cases that cannot be strengthened by further investigation.
• Crown Prosecutors will only require 'evidential reports' where it is clear that the case will proceed to the Crown Court or is likely to be a contested summary trial or where it appears to the Crown Prosecutor that the case is so complex or sensitive that a decision to charge cannot be made without an evidential report.
• Where it is necessary, pre-charge bail arrangements will be utilised to facilitate the gathering of evidence, including, in appropriate cases, all the key evidence on which the prosecution will rely, prior to the charging decision being taken (s 37 (7)(a) and s 47 (1A) PACE).
• Crown Prosecutors will notify the officer involved in the investigation of any advice and charging or other decision in writing using the form MG3 (s 37B (4) PACE).
• Persons may be charged whilst in police detention, or in accordance with s 29 of the Criminal Justice Act 2003 (charging by post) when it is brought into force. [The summons procedure may be used until that change in the process arrangements.]
• Where a Crown Prosecutor notifies a Custody Officers that there is insufficient evidence to charge, or that though there is sufficient evidence to charge, a person should not be charged or given a caution, the Custody Officer shall give notice in writing to that person that he is not to be prosecuted (s 37B(5) PACE).
• Where Crown Prosecutors decide that a person should be charged with an offence or given a caution, conditional caution, a reprimand or final warning in respect of an offence, the person shall be charged or cautioned, or conditionally cautioned, or given a reprimand or final warning accordingly (s 37B(6) PACE).
• Where Crown Prosecutors decide that a person should be cautioned but it proves not to be possible to give the person such a caution, the person shall instead be charged with the offence (s 37B (7) PACE.)
• In order to facilitate efficient and effective early consultations and make charging decisions, Crown Prosecutors will be deployed as Duty Prosecutors for such hours as shall be agreed locally to provide guidance and make charging decisions. This service will be complemented by a centrally managed out of hours duty prosecutor arrangement to ensure a continuous 24 hour service.

In deciding whether the suspect should be charged and, if so, with what offence(s), the test set out in the Code for Crown Prosecutors should normally be applied, namely (following a review of the evidential material provided) that there is enough evidence to provide a realistic prospect of conviction and that it is in the public interest to proceed. However, where the necessary information it not available, the Crown Prosecutor (or Custody Officer) will assess the case against the Threshold Test, namely whether in all the circumstances of the case there is at least a reasonable suspicion against the person of having committed an offence (in accordance with Article 5 of the European Convention on Human Rights) and that at that stage it is in the public interest to proceed. The evidential decision in each case will require consideration of a number of factors including: the evidence available at the time and the likelihood and nature of further evidence being obtained; the reasonableness for believing that evidence will become available; the time that will take and the steps being taken to gather it; the impact of the expected evidence on the case, and the charges the totality of the evidence will support (para 10).

Chapter 1.14.2:  Decision to prosecute (pp. 62-64)

In R (A) v South Yorkshire Police and Crown Prosecution Service [2007] EWHC 1261 (Admin); (2007) 171 JP 465, a number of juveniles sought to challenge the decision to charge them rather than give a final warning under of 65 of the Crime and Disorder Act 1998. They argued that the decision contravened the relevant Home Office Circular (14/2006). It was held that the Court should not intervene unless it is clearly established that the decision to prosecute the defendants came about as a result of a departure from the statutory guidance and there is no rational explanation for that departure; even then, any intervention by the court would be discretionary. The ultimate question for decision is whether or not the decision to prosecute is sustainable.

Chapter 1.14.3: Private prosecutions (p. 64)

In Ewing v Davis [2007], Mitting J said that, historically there has never been a requirement that a private prosecutor has to show a public interest where the prosecution is brought under a public general Act. This power has not been fettered by modern statute. Section 6(1) of the Prosecution of Offences Act 1985 neither qualifies nor extends existing rights. Public interest in a private prosecution is established by the nature of the offence as defined in statute, not by the circumstances leading up to it. His Lordship added that the earlier case of R (Gladstone Plc) v Manchester City Magistrates' Court [2004] EWHC 2806 (Admin), [2005] 1 WLR 1987 should not be taken as an invitation to magistrates to examine the circumstances of alleged offences and their relation to the private prosecutor.

Chapter 1.14.2: The decision to prosecute (pp. 62-64)

In R (Dennis) v DPP [2006] EWHC 3211, the Divisional Court considered the circumstances where a decision by CPS not to prosecute might be successfully challenged by way of judicial review.  Waller LJ referred to the earlier authority of R v DPP ex parte C [1995] 1 Cr App R 136 where Kennedy LJ (at 141C) said that the decision would only be struck down if the decision not to prosecute was reached because of an unlawful policy (such as a policy never to prosecute theft where the value of goods stolen is below a given sum), or because CPS failed to act in accordance with their own settled policy as set out in the Code, or because the decision was perverse (in the sense of being a decision at which no reasonable prosecutor could have arrived). At para 30, Waller LJ concludes as follows:
‘First, if it can be demonstrated on an objective appraisal of the case that a serious point or serious points supporting a prosecution have not been considered, that will give a ground for ordering reconsideration of the decision. Second, if it can be demonstrated that in a significant area a conclusion as to what the evidence is to support a prosecution is irrational, that will provide a ground. Third, the points have to be such as to make it seriously arguable that the decision would otherwise be different, but the decision is one for the prosecutor and not for this court. Indeed it is important to bear that fact in mind at all stages. Fourth, where an inquest jury has found unlawful killing the reasons why a prosecution should not follow need to be clearly expressed’.

UPDATE SEPTEMBER 2007

Chapter 1.14.2 (pages 62-64): The decision to prosecute

Sharma v Browne-Antoine [2006] UKPC 57 confirms that a decision to prosecute is ordinarily susceptible to judicial review, but that judicial review of a prosecutorial decision, although available in principle, is a highly exceptional remedy.

Chapter 1.13.1 (pages 55-58): Alternatives to prosecution – cautions

In Jones v Whalley [2006] UKHL 41, the House of Lords held that it is an abuse of the court's process for a private prosecution to be brought against a person after he has accepted a formal caution by the police on the express assurance that, if he agrees to be cautioned, he will not have to go before a criminal court in connection with the offence.

In R (Wyman) v Chief Constable of Hampshire Constabulary [2006] EWHC 1904 (Admin), W was cautioned for sexual assault.' However, he subsequently challenged the caution on the basis that what he said in interview did not constitute an admission that the complainant had not consented to W touching her or that W had not reasonably believed that she consented. The Divisional Court held that, before a formal caution can be administered, there must be clear and reliable evidence of a voluntary admission which relates to all the ingredients of the alleged offence. In the instant case, there was no appropriate admission as to two ingredients of the offence and so a formal caution should not have been administered.

Chapter 1.14.2 (pages 62-4): Challenging the prosecution decision

In R v DPP ex p C [1995] 1 Cr App R 136 it was held that the court could be persuaded to intervene only if it were demonstrated that the Director had arrived at the decision not to prosecute (1) because of some unlawful policy, (2) because of a failure to act in accordance with settled policy as set out in the Code, or (3) because the decision was perverse, i.e. one at which no reasonable prosecutor could have arrived.

The leading authority is now R v DPP ex p Manning [2001] 1 QB 330. Lord Bingham CJ said (at para 23):
"Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review … But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the CPS … and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the Director's provisional decision is not to prosecute, that decision will be subject to review by senior Treasury counsel who will exercise an independent professional judgment. The Director and his officials (and senior Treasury counsel when consulted) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied."

In R (Patricia Armani da Silva) v DPP and Independent Police Complaints Commission [2006] EWHC 3204 (Admin), Richards LJ, giving the judgement of the Court, said (at para 42):
“We cannot see any … reason why the evidential test in the Code should be held to contravene article 2 [of the ECHR]. Its application involves a judgment but it is very far from arbitrary, since the judgment must be made by reference to a clearly defined, objective criterion. The test has stood the test of time and the rationale for it remains as valid in the context of article 2 as it does generally.”

His Lordship added, at para 43:
“Similarly, we do not consider that article 2 requires a change in the established position regarding judicial review of a decision not to prosecute. The article 2 context means that the court must submit the case to "careful scrutiny" (see Öneryildiz v Turkey (2005) 41 EHRR 20, para 96), but that is entirely consistent with Manning and with the court's general approach in cases involving fundamental human rights … But we do not accept that the legal test to be applied in determining whether the decision under scrutiny is lawful departs from the Wednesbury principles applied in Manning.

Chapter 1.14.3 (page 64): Private prosecutions

When magistrates are considering whether to issue a summons for a private prosecution where CPS have already brought and discontinued a prosecution arising out of the same events, they should not require special circumstances before agreeing to the issue of the summons.  They should consider: (a) whether the allegation is an offence known to the law and, if so, whether the ingredients of the offence are prima facie present; (b) whether the issue of the summonses is time-barred; (c) whether the court has jurisdiction; (d) whether the informant has the necessary authority to prosecute; and (e) any other relevant facts. Where magistrates are considering whether to issue a summons for a private prosecution where CPS have already brought a prosecution which is still proceeding, they should, in the absence of special circumstances, be slow to issue a summons at the behest of a private prosecutor in respect of the same matter: see R (Charlson) v Guildford Magistrates’ Court [2006] EWHC 2318; [2006] 1 WLR 3494).

UPDATE MAY 2006

Chapter 1.4, pages 6-11 (Arrest)

Revised Codes of Practice under the Police and Criminal Evidence Act 1984 have been issued. In particular, there is a new Code G, which covers police powers of arrest in light of the changes made by the Serious Organised Crime and Police Act 2005, which amends s 24 of PACE to enable a police officer may arrest a suspect for any offence subject to a test of necessity (for example, to allow the prompt and effective investigation of the offence, or to prevent any prosecution for the offence being hindered by the disappearance of the suspect).

UPDATE OCTOBER 2005

Chapter 1.3.3. pages 3-4 (Contents of information)

In Nash v RSPCA [2005] EWHC Admin 338; (2005) 169 JP 157, it was held that, under r 100 of the Magistrates' Courts Rules 1981 (now rule 7.2 of the Criminal Procedure Rules 2005 (SI 2005/384)), the accused is entitled to know what act or omission is alleged against him. If the information/summons fails to give sufficient information to the accused as to the nature of the charge he faces, that of itself does not render the proceedings a nullity or any resulting conviction unsafe, provided that the requisite information was given to the accused in good time for him to be able fairly to meet the case against him.

Chapter 1.4, pages 6-11 (Arrest)

Serious Organised Crime and Police Act 2005, s. 110 (powers of arrest)
(1) For section 24 of PACE (arrest without warrant for arrestable offences) substitute—

“24 Arrest without warrant: constables (1) A constable may arrest without a warrant—
(a) anyone who is about to commit an offence;
(b) anyone who is in the act of committing an offence;
(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence;
(d) anyone whom he has reasonable grounds for suspecting to be committing an offence.
(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
(3) If an offence has been committed, a constable may arrest without a warrant—
(a) anyone who is guilty of the offence;
(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.
(4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.
(5) The reasons are—
(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b) correspondingly as regards the person's address;
(c) to prevent the person in question—
(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii) causing loss of or damage to property;
(iv) committing an offence against public decency (subject to subsection (6)); or
(v) causing an unlawful obstruction of the highway;
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
(6) Subsection (5)(c)(iv) applies only where members of the public going about their normal business cannot reasonably be expected to avoid the person in question.

24A Arrest without warrant: other persons
(1) A person other than a constable may arrest without a warrant—
(a) anyone who is in the act of committing an indictable offence;
(b) anyone whom he has reasonable grounds for suspecting to be committing an indictable offence.
(2) Where an indictable offence has been committed, a person other than a constable may arrest without a warrant—
(a) anyone who is guilty of the offence;
(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.
(3) But the power of summary arrest conferred by subsection (1) or (2) is exercisable only if—
(a) the person making the arrest has reasonable grounds for believing that for any of the reasons mentioned in subsection (4) it is necessary to arrest the person in question; and
(b) it appears to the person making the arrest that it is not reasonably practicable for a constable to make it instead.
(4) The reasons are to prevent the person in question—
(a) causing physical injury to himself or any other person;
(b) suffering physical injury;
(c) causing loss of or damage to property; or
(d) making off before a constable can assume responsibility for him.”
(2) Section 25 of PACE (general arrest conditions) shall cease to have effect.

The effect of these changes is that a police officer can arrest a person for any offence, provided that the necessity test in the new s 24(4) of PACE is satisfied. A person who is not a police officer may arrest someone for any indictable offence, so long as the necessity test is s 24A is satisfied.

Consequential amendment to PACE:

Schedule 7 of the 2005 Act, para 24, provides:-

The Police and Criminal Evidence Act 1984 is amended as follows.
In section 118(1) (general interpretation) omit the definition of “arrestable offence”.
Schedule 1A (specific offences which are arrestable offences) ceases to have effect.

Para 43 of Schedule 7 provides:-

In section 42(1)(b), for “arrestable” substitute “indictable”.
In section 43(4)(b) (warrants of further detention), for “a serious arrestable offence” substitute “an indictable offence”.
In section 56 (right to have someone informed when arrested)—
(a) in each of subsections (2)(a) and (5)(a), for “a serious arrestable offence” substitute “an indictable offence”,
(b) in subsection (5A)(a), for “the serious arrestable offence” substitute “the indictable offence”.
In section 58 (access to legal advice)—
(a) in each of subsections (6)(a) and (8)(a), for “a serious arrestable offence” substitute “an indictable offence”,
(b) in subsection (8A)(a), for “the serious arrestable offence” substitute “the indictable offence”.
Section 116 (meaning of “serious arrestable offence”) ceases to have effect.
In Schedule 1 (special procedure material), paragraph 2(a)(i), for “a serious arrestable offence” substitute “an indictable offence”.
Schedule 5 (serious arrestable offences) ceases to have effect.

Chapter 1.6.1, pages 12-14 (Street bail)

Andrea Hucklesby in Not Necessarily a Trip to the Police Station: the Introduction of Street Bail [2004] Crim LR 803 concludes:
‘This article has suggested that there are significant issues raised by the introduction of street bail. These include the by-passing of suspects' rights at the police station, the possibility that the power will be used in a discriminatory way, the potential for net-widening and abuse of the powers by the police. Some of these issues have been highlighted in official documentation but they have not been adequately addressed in the legislation or in the guidance which has been issued to-date. Furthermore, the introduction of street bail erodes the separation of personnel involved in the investigation of offences and/or offenders and those who make bail/detention decisions and the safeguards for the rights of suspects which were introduced by PACE 1984 to prevent miscarriages of justice. Whilst any measure to reduce bureaucracy and increase the time police officers spend on the street is to be welcomed, this should not be at the expense of safeguarding suspects' rights and ensuring that appropriate and proportional remand decisions are made. The introduction of this significant police power requires careful monitoring and evaluation in order to assess its impact in terms of the extent of its use, reducing the time the police spend processing suspects and the broader issues’.

Chapter 1.6.3, pages 16-18 (Charging the suspect)

The enhancement of the role of CPS in the charging of suspects is discussed by Ian Brownlee in The Statutory Charging Scheme in England and Wales: Towards a Unified Prosecution System [2004] Crim LR 896. He sets out the aims of the new arrangements in the following terms:

The specific aims of the new charging arrangements may be summarised as follows: the elimination at the earliest opportunity of hopeless cases, the production of more robust prosecution cases, the elimination of unnecessary or unwarranted delays in the period between charge and disposal and the reduction of the number of trials that "crack" through the offering and acceptance of guilty pleas to reduced charges at a late stage in the process.

He goes on to discuss the content of the first edition of the DPP's guidance on the new charging scheme, in the ‘Manual of Guidance’, issued in May 2004 (see Appendix A: ‘Guidance to Police Officers and Crown Prosecutors in respect of the making of charging decisions issued by the Director of Public Prosecutions under
S37A of the Police and Criminal Evidence Act 1984 (including Information
for Custody Officers: the authority to detain a person for a charging
decision by a Duty Prosecutor)’: http://www.homeoffice.gov.uk/docs3/manualofguidance04_appendices.pdf

Brownlee examines the criteria by which the success – or otherwise – of the new scheme will be judged and the challenges that the scheme faces:

… statutory charging aims to eliminate hopeless cases at the earliest possible opportunity and to improve those cases that are to proceed by ensuring that all the evidence necessary to prove the case in court is obtained at an early rather than a later stage in the proceedings. Ideally, where a suspect is considered suitable for bail, the aim should be to acquire all the essential evidence and construct a coherent case before the suspect is even charged. Thereby, the prosecution would hope that the papers they serve as advance information at or before the first hearing is so compelling that a greater number of early guilty pleas will be encouraged. Even where cases are to be contested it is intended that any delay that is necessitated by the need to build effective cases will be located predominantly within the pre-charge stage rather than the court process. Success will be measured by the ability of the statutory charging scheme to reduce the number of discontinued charges and cracked trials, increase the proportion of early guilty pleas and contribute generally to the timeliness of the trial process by reducing the overall time from charge to disposal in cases where pre-charge advice has been taken.

… If the new scheme is to succeed and the wider ambitions of the CPS advanced, at least two practical problems will have to be addressed.

(i) Finding the staff

The first of these is the mundane but essential issue of human resource management to ensure that there are sufficient prosecutors of adequate experience to deliver the sort of charging decisions that will have a positive impact on the system… [The scheme depends] on the ability of duty prosecutors, often acting alone, in unfamiliar surroundings and in situations of some urgency and pressure, to come to the right decisions quickly. To identify key evidential and procedural issues and to anticipate potential problems at an early stage in an investigation is a task calling for considerable skill, experience and not a little self-confidence…

(ii) Changing the culture

An even more fundamental challenge, perhaps, is to change the culture among police officers away from one in which the early charging of suspects is seen as a mark of completion and even success, towards an acceptance that suspects may have to remain on pre-charge bail longer while evidence is amassed and case files built … much will depend again upon the ability of individual duty prosecutors to act effectively and, when necessary, robustly in establishing the new approach to charging. The danger to be avoided is that of Crown Prosecutors exposed to police station culture "going native", that is to say, adopting the “machismo” sometimes associated with policing operations and becoming seduced by policing rather than prosecutorial priorities. Were that to happen to any appreciable extent, then the potential benefits to be gained from the early introduction of more rigorous standards of proof would be lost and one would be left with little more than a doubling up of the custody officer's role.

Chapter 1.13.1 (Cautions for adults)

Home Office Circular 18/1994 has been replaced by a new one: number 30/2005. It refers to cautions for adults as ‘simple cautions’ (to distinguish them from ‘conditional cautions’ under the CJA 2003. Para 6 of the Circular sets out the aims of the simple caution, namely:

• to deal quickly and simply with less serious offences;
• to divert offenders where appropriate from appearing in the criminal courts; and
• to reduce the likelihood of re-offending.

Key points from the Circular include the following, set out in Appendix A to the Circular:

1. Criteria for a Simple Caution

• Is there sufficient evidence of the suspect's guilt to meet the Threshold Test (as outlined in the Director’s Guidance on statutory charging)? If the offence is indictable only (and the available evidence meets the Threshold Test) then the disposal option may only be considered by a Crown Prosecutor.
• Has the suspect made a clear and reliable admission of the offence (either verbally or in writing)?
• Is it in the public interest to use a Simple Caution as the appropriate means of disposal?
• Is the suspect 18 years or over?

If all of the above requirements are met, the officer must consider whether the seriousness of the offence makes it appropriate for disposal by a Simple Caution. The Gravity Factors Matrix is available to assist officers in considering aggravating and mitigating factors when assessing seriousness.

2. The victim

The views of the victim must be considered when deciding whether a Simple Caution is the most appropriate course of action. However it must be made clear to the victim that the decision rests with the police and CPS.

3. Further considerations

Does the suspect have any other cautions for similar offences?
• National and local records must be checked. If ‘yes,’ then a Simple Caution should not normally be considered, unless a two year period has passed with no further convictions or cautions, or unless the offence is trivial or unrelated. If the suspect has previously received a Reprimand or Final Warning, a period of two years should also be allowed to elapse before administering a Simple Caution.

Has the suspect been made aware of the significance of a Simple Caution?
• If a Simple Caution is being considered, then the full implications and consequences must be explained to the suspect. Under no circumstances should suspects be pressed to admit offences in order to receive a Simple Caution as an alternative to being charged. Be aware of additional consequences for those receiving a Simple Caution for sexual offences or who are employed in notifiable occupations.

Has the suspect given informed consent to being cautioned?
• If they do not consent, then police may choose to continue with a prosecution. The suspect should not be pressed to make an instant decision on whether to accept the Simple Caution. They should be allowed to consider the matter, and if need be, take independent advice.

4. Approval

If the offence is suitable for disposal by means of a Simple Caution, then it should be referred for approval to an officer who is unrelated to the investigation of the offence and is of at least Sergeant rank (they may or may not be a Custody Officer).

Once the approving officer is satisfied that the requirements for administering a Simple Caution have been met, they will need to consider:

• if it is appropriate to the offence and offender; and
• if it is in the public interest to deal with the offence in this way.

When the approving officer has reached a decision in favour of issuing a Simple Caution, they should sign the custody record or other suitable documentation to say that they have approved this as the appropriate method of disposal.

5. Administering the Simple Caution

After the Simple Caution has been approved, it should be administered by someone who is suitably trained for this purpose and to whom the relevant authority has been delegated. If a suitable person is not immediately available an officer of Inspector rank or above may determine an appropriate person to deliver the Simple Caution.

Once the Simple Caution has been administered, the offender should sign a form accepting the terms of the caution and should be given a copy of the acceptance pro-forma to take away.

Ensure the details of the Simple Caution are accurately recorded on PNC (if administered for a recordable offence) and any relevant local records.

Chapter 1.13.2, pages 58-60 (Juveniles - reprimands and warnings)

In R (R) v Durham Constabulary [2005] UKHL 21; [2005] 1 WLR 1184, the House of Lords held that a warning given under sections 65 and 66 of the Crime and Disorder Act 1998 does not involve the determination of a criminal charge against the juvenile, and neither does the decision of the police to issue the warning. Therefore no human rights issue arise under the fair trial provisions of the European Convention on Human Rights.

Chapter 1.19, pages 75-81 (Code for Crown Prosecutors)

A new CPS Code for Prosecutors has been published:
http://www.homeoffice.gov.uk/docs3/manualofguidance04_appendices.pdf

It provides as follows:-

2 GENERAL PRINCIPLES
2.1 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.
2.2 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.
2.3 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.
2.4 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.
2.5 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.
…
2
3 THE DECISION TO PROSECUTE
3.1 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.
3.2 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).
3.3 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.
3.4 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.
3
4 REVIEW
4.1 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.
4.2 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.
4.3 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.
4
5 THE FULL CODE TEST
5.1 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 STAGE
5.2 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.
5.3 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.
5.4 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:
Can the evidence be used in court?
Is the evidence reliable?
a 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?
b 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?
c 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?
d If the identity of the defendant is likely to be questioned, is the evidence about this strong enough?
e 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?
f 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?
5.5 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.
THE PUBLIC INTEREST STAGE
5.6 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.)
5.7 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).
5.8 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.
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. Some common public interest factors in favour of prosecution
5.9 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:
a a conviction is likely to result in a significant sentence;
b a conviction is likely to result in a confiscation or any other order;
c a weapon was used or violence was threatened during the commission of the offence;
d the offence was committed against a person serving the public (for example, a police or prison officer, or a nurse);
e the defendant was in a position of authority or trust;
f the evidence shows that the defendant was a ringleader or an organiser of the offence;
g there is evidence that the offence was premeditated;
h there is evidence that the offence was carried out by a group;
i the victim of the offence was vulnerable, has been put in considerable fear, or suffered personal attack, damage or disturbance;
j the offence was committed in the presence of, or in close proximity to, a child;
k 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;
l 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;
m the defendant's previous convictions or cautions are relevant to the present offence;
n the defendant is alleged to have committed the offence while under an order of the court;
o there are grounds for believing that the offence is likely to be continued or repeated, for example, by a history of recurring conduct;
p the offence, although not serious in itself, is widespread in the area where it was committed; or
q a prosecution would have a significant positive impact on maintaining community confidence.
Some common public interest factors against prosecution
5.10 A prosecution is less likely to be needed if:
a the court is likely to impose a nominal penalty;
b 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;
c the offence was committed as a result of a genuine mistake or misunderstanding (these factors must be balanced against the seriousness of the offence);
d 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;
e 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;
f 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;
g 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;
h 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
i details may be made public that could harm sources of information, international relations or national security.
5.11 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.
The relationship between the victim and the public interest
5.12 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.
5.13 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.

6 THE THRESHOLD TEST
6.1 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.
6.2 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.
6.3 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.
6.4 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;
• he charges that the evidence will support.

6.5 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.
6.6 A 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 SELECTION OF CHARGES
7.1 Crown Prosecutors should select charges which:
a reflect the seriousness and extent of the offending;
b give the court adequate powers to sentence and impose appropriate post-conviction orders; and
c enable the case to be presented in a clear and simple way.
This means that Crown Prosecutors may not always choose or continue with the most serious charge where there is a choice.
7.2 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.
7.3 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 DIVERSION FROM PROSECUTION
ADULTS
8.1 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.
8.2 Alternatives to prosecution for adult suspects include a simple caution and a conditional caution.
Simple caution
8.3 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.
Conditional caution
8.4 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.
8.5 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.
8.6 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.
8.7 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.

YOUTHS
8.8 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.
8.9 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.

9 MODE OF TRIAL
9.1 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.
9.2 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 ACCEPTING GUILTY PLEAS
10.1 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.
10.2 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.
10.3 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.
10.4 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.
10.5 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.

11PROSECUTORS' ROLE IN SENTENCING
11.1 Crown Prosecutors should draw the court's attention to:

• any aggravating or mitigating factors disclosed by the prosecution case;
• any victim 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).

11.2 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 RE-STARTING A PROSECUTION
12.1 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.
12.2 These reasons include:
a rare cases where a new look at the original decision shows that it was clearly wrong and should not be allowed to stand;
b 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
c cases which are stopped because of a lack of evidence but where more significant evidence is discovered later.