#10514 - Discretion To Prosecute - Criminal Procedure and Evidence

Conflicting theories:

• Structured discretion - what we have

• Legality principle – prosecute for all offences

Commencing Prosecution

1. Lay an information before a magistrate

   1. Police, other prosecuting authorities, citizens. Mag then issues summons requiring appearance before court to answer allegation.

   2. Written charge – Police, CPS

2. Charge suspect with an offence

   1. Police, CPS

s.6 Prosecution of Offences Act 1985 allows person who complains they have been a victim of crime to instigate a private prosecution against the alleged perpetrator.

Alternatives to Prosecution

1. Administer a formal caution – kept for 5 years and can be evidence of Ds character.

   1. Where evidence strong enough for prosecution; D admits offence; caution in the public interest.

2. Reprimands and warnings – new scheme for cautioning juveniles.

   1. To be replaced again by LASPOA 2012 s135 – youth caution scheme instead of reprimands and warnings

3. Conditional cautions – CJA s.22 and 27

   1. Carrying out a condition w/ threat of prosecution in event of failure to do so.

   2. Conditions; authorised person has evidence offender committed offence, relevant prosecutor decides there is sufficient evidence to charge but that a conditional caution should be given instead; offender admits he committed offence; effect is explained by authorised person inc warning of prosecution; offender signs documents w/ details of the offence + caution.

   3. Used for things like compensation and apology letters

4. Fixed penalty notice –e.g. parking tickets

Often CPS have sole responsibility to determine whether a suspect should be charged and for what offence. Guidelines for CPS lawyers is in the Code for Crown Prosecutors that the DPP issues under s10 Prosecution of Offences Act 1985.

Full Code Test

• P may only start or continue prosecution where the case passes both stages of the Full Code Test (unless the threshold test applies where p propose to apply to court to keep suspect in custody after charge and evidence required for Full Code Test not available).

• Full Code Test:

  • Availability of sufficient evidence for a ‘realistic prospect of conviction’ in respect of the charges against each D, considering the likely defence case.

    • Objective test of whether jury would be more likely than not to convict.

  • Public interest in prosecution.

    • Code lays down factors which tend toward decision to prosecute and those which militate against such a decision

    • Favouring prosecution e.g.- conviction likely to result in significant sentence, suspect in position of auth and took advantages, offence involved weapon or threat of violence.

    • Against prosecution e.g. – court likely to impose a nominal penalty, seriousness and consequences can be dealt with out of court, offence committed as a result of genuine mistake or misunderstanding.

    • Must consider the factors and make overall assessment.

Threshold Test – when there is not enough evidence at the time the suspect must be released unless charged.

• Prosecutor can apply the Threshold Test in order to decide whether to charge.

• Only applies where

(a) insufficient evidence to apply evidential stage of FCT and

(b) reasonable grounds to believe more evidence will be available in reasonable period; and

(c) seriousness of case, or its circumstances, justify making of immediate charging decision; and

(d) continuing substantial grounds to object to bail and an application to withhold bail may properly be made.

• Test:

  • Evidential stage: does evidence currently give rise to reasonable suspicion AND are there reasonable grounds to believe the evidence gathered in reasonable time will be capable of establishing reasonable prospect of conviction?

  • Public interest stage like above.

Controlling the discretion to prosecute

• CPS internal review procedure

• Instigate a private prosecution

  • See below

• Judicial review

  • Available if

    • Legally flawed decision under the discretion

    • Flouting the Code for Prosecutors – R v DPP ex p C: Decision not to prosecute police officer accused of sexual offences against Code rule to take such allegations seriously.

    • If Wednesbury unreasonable – R (Guest) v DPP: Neighbour beat up G and then ran way. CPS looked into it but ended it with a conditional caution + the Court quashed that decision on judicial review because of how unreasonable it was.

      • R v Director of the SFO: when dealing w/ external relationships with other countries it is proper to take into account reasons of state policy.

  • Disgruntled D usually should use abuse of process rather than JR or the internal CPS review system.

  • Effect of quashing decision just means it has to be made again.

• Abuse of process

  • See below

Legal basis: Prosecution of Offences Act 1985 s.6.

“Prosecutions instituted and conducted otherwise than by the Service

(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director's duty to take over the conduct of proceedings does not apply.

(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage.”

• Early in English legal history most prosecutions were private.

• Thatcher did not want to abolish private prosecutions so they have been retained.

• Lord Wilberforce: “it is a constitutional safeguard against inertia or partiality on the part of the authority”

When may a private citizen ‘have a go’ when CPS don’t/wont?

• R (Ewing) v Davis: Long running argument between neighbours about whether permission should be given for improving a drive that would have enabled neighbour to build on his land. Eventually disgruntled neighbour got local person to bring a private prosecution.

  • Court said that private prosecutors do not have to follow CPS Code or prove it was in public interest.

• R (Charlson) v Guildford Mag Court: CPS decided not to prosecute but this did not bar private prosecution.

• Jones v Whalley: Police officer issued a caution to D who admitted assault and the caution stated ‘you will not go before a criminal court in connection with this matter’. V then instigated private prosecution against D, D argued it was abuse of process.

  • On appeal to HL:

    • Q of whether private pros is abuse of process where D has agreed to be cautioned on assurance of not having to go to court.

      • HL said yes – not fair at all to try the appellant in the circumstances. Would undermine statutory caution schemes.

    • Lord Bingham questioned obiter the value of the surviving right of public prosecution.

  • Nick Taylor: CPS and costs of private prosecution diminish the rights’ relevance, and caution schemes are key to divert things from court so this undermines righ even more.

    • Law Com: recommended notification of private prosecutions to the DPP Rather than abolition of the right

    • Abolition needs scrutiny but it seems that the safeguards against abuse exist already in the powers held by the CPS. These should be utilised if the cautioning scheme is to remain effective.

When the private individual ‘has a go’, when will the CPS intervene and end it?

• Sometimes DPP obliged to take over. Where they do not, the DPP/CPS rep have three options:

  • Allow private prosecution to proceed

  • Take over and continue

  • Take over and discontinue

• Ex p Duckenfield: attempt to bring private prosecution against chief constable. CPS were asked by CC to take over and end it because there was not enough evidence – this was not allowed.

• R (Gujra Singh) v CPS:

  • G claimed assault and harassment, instituting 2 private prosecutions against D. CPS took them over and discontinued them, saying there was ‘no realistic prospect’ of conviction. New CPS guidance in 2009 had created this higher standard of evidence.

    • G argued change in policy defeated intention of the 1985 Act.

  • Supreme Court:

    • 3:2 majority said guidance was a lawful ‘adjustment’ to the right to institute private prosecution rather than an unlawful ‘emasculation’ of that right.

    • Lord Neuberger: private indivs can still instigate them when they like, even if they are discontinued.

    • Lady Hale dissented – said 2009 police ‘effectively removed’ the right to privately prosecute.

  • Stark: 2009 guidance did narrow scope of the right, rendering private prosecutions unavailable whenever DPP would not proceed.

  • Stark likes this decision – opens door “to a more consistent and coherent system of criminal prosecution”.

    • Maj in SC concentrated on the need for consistency in instigation and continuance of criminal proceedings. Lower evidential standards can be oppressive and wasteful.

    • Should prosecution depend on the identity of the complainant + whether they have the time/money to proceed?

      • Stark thinks the core Qs should be whether a judge or jury is likely to convict and whether its in public interest for case to be heard.

  • Points from Gujra:

    • Lady Hale emphasises need for rights for those historically ignored by state prosecuting services = favours judicial oversight of pros discretion but doesn’t really call for broad right to privately prosecute

    • Consistency still hard to achieve after Gujra because DPP is not always notified (note law com notification suggestion)

    • Essentially, when the 2009 police of needing ‘realistic prospect of conviction’ is met, Stark thinks those also in public interest should be able to continue…but surely this is recognising that the DPP should be prosecuting? Esp since they have better resources/experience.

      • System...