5. Crown Prosecution Service Flashcards
Prosecutors must only start or continue a prosecution where
- both stages of the Full Code Test is passed.
CODE FOR CROWN PROSECUTORS
The Full Code Test has two stages:
(1) evidential stage
(2) public interest stage
The Full Code Test should be applied:
a) when all outstanding reasonable lines of inquiry have been pursued; or
b) prior to the investigation being completed, if the prosecutor is satisfied that any further evidence or material is unlikely to affect the application of the Full Code Test, whether in favour of or against a prosecution.
In the evidential stage, prosecutors must be:
satisfied that there is sufficient evidence to provide a ‘realistic prospect of conviction against each suspect on each charge’.
EVIDENTIAL STAGE
- The finding of a realistic prospect of conviction is based on the prosecutor’s objective assessment.
Realistic prospect of cnonviction means:
an objective, impartial and reasonable tribunal of fact, properly directed is MORE LIKELY THAN NOTto convict the Defendant
Public interest stage
The prosecutors should consider:
CHAPS CS
- Level of culpability of the suspect
- Circumstances of and the harm caused to the victim
- UNDER 18 at time of offence
- Is prosecution a proportionate response
- How serious the offence is
- Impact on community
- Do sources of information require protecting
Accepting guilty pleas
Where Defendants want to plead guilty to some, but not all of the charges, or a less serious charge:
Prosecutors should only accept the defendant’s plea is:
- The court is able to pass a sentence that matches the seriousness of the offending
- Enables the court to make a confiscation order, where a defendant has benefited from criminal conduct; and
- Provides the court with adequate powers to impose ancillary orders.
Care should be taken when considering pleas which would enable the defendant to avoid the imposition of a mandatory minimum sentence.
Prosecutors must never accept a plea because it is
convenient.
In considering whether the pleas offered are acceptable: prosecutors should look at
the interests and views of the victim, or views of family when deciding whether it is in the public interest. However, the decision rests with the prosecutor.
Full code test
Prosecutors must only start or continue a prosecution where
- both stages of the Full Code Test is passed.
- The Farquharson Guidelines
- Pre-trial preparation
- The Prosecutor must have read the instructions and advised on all aspects of the case
- On receipt of instructions, the prosecutor will consider the papers and advise The CPS, ordinarily in writing, or orally in cases of urgency where:
- The prosecutor forms a different view to that expressed by the CPS on acceptability of plea.
- The prosecutor will inform the CPS without delay where the advocate is unlikely to be available to undertake the prosecution or advise within the relevant timescale.
Withdrawal of instructions
A solicitor who has briefed Counsel may withdraw his instructions…
- before the commencement of the trial up to the point where it becomes impracticable to do so, if he disagrees with the advice given by Counsel or for any other proper professional reason.
Withdrawal of instructions
If the prosecution advocate disagrees with any part of his instructions, the advocate should
- contact the responsible Crown Prosecutor to discuss the matter. Until disagreement has been resolved, the matter will remain confidential.
Withdrawal of instructions
Proper Professional reason
The prosecution advocate will keep The CPS informed of:
- any personal concerns, reservations or ethical issues that the advocate considers have the potential to lead to a possible conflict with his instructions
- Where the CPS identifies the potential for professional embarrassment about the prosecution’s ability, the CPS can withdraw instructions.
Presentation and conduct
Whilst he is instructed, it is for Counsel to take all
- necessary decisions in the presentation and conduct of prosecution, apart from where policy dictates (See below)
- The prosecutor has a continuing duty to keep under review decisions regarding disclosure
Policy decisions
Where policy fall to be decided after the point of withdrawing instructions, it is the duty of Counsel to
- consult his Instructing solicitor/Crown Prosecutor
- In rare cases where Counsel and Instructing Solicitor do not agree on a matter of police, it is for Prosecution Counsel to make the necessary decisions.
Policy issues arising at trial
The prosecution advocate should
- alert the CPS at the first opportunity if a matter of policy is likely to arise.
- The prosecution advocate must not give an indication or undertaking which binds the prosecution without first discussing with the CPS.
CPS representation at Crown Court
Where it is not possible to contact a Crown Prosecutor, the prosecution advocate should
ask the court to adjourn the hearing for a realistic period in order to consult with the CPS. Where adjournment is refused, the prosecution advocate may make the decision but should record his or her reasons in writing.
Change of advice
When counsel has prepared his brief and conferred with those instructing him, but at the last moment before trial unexpectedly advises that the case should not proceed or there is a lesser offence, and his Instructing Solicitor does not accept such advice, Counsel should
apply for an adjournment if instructed.
Prosecution advocate’s role in decision making at trial
The prosecution Counsel must:
- decide whether to offer no evidence on a particular count and whether to accept [Guilty] pleas to a lesser count
- The prosecution advocate should not suggest or indicate a [guilty] plea that might be considered acceptable to the prosecution before a plea is offered.
- Where a plea is offered, the prosecution advocate must consult.
What must prosecutors do? , i.e. their obligations?
Prosecutors must ensure that the law is properly applied; that relevant evidence is put before the court; and that obligations of disclosure are complied with.
Prosecutors must always act
in the interests of justice and not solely for the purpose of obtaining a conviction.
prosecutors cannot direct the
police or other investigators.
Prosecutors should identify and, where possible, seek to rectify evidential weaknesses, but, subject to the Threshold Test, they should swiftly stop cases which
do not meet the evidential stage of the Full Code Test and which cannot be strengthened by further investigation, or where the public interest clearly does not require a prosecution.
Prosecutors must only start or continue a prosecution when the case has passed
both stages of the Full Code Test. The exception is when
the Threshold Test may be applied where it is proposed to apply to the court to keep the suspect in custody after charge, and the evidence required to apply the Full Code Test is not yet available.
In most cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed. However there will be cases where
it is clear, prior to the collection and consideration of all the likely evidence, that the public interest does not require a prosecution. In these instances, prosecutors may decide that the case should not proceed further.
If prosecutors do not have sufficient information to take such a decision, the investigation should
proceed and a decision taken later in accordance with the Full Code Test set out in this section.
Prosecutors must be satisfied that there is sufficient evidence to provide a
realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction.
The finding that there is a realistic prospect of conviction is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which he or she might rely. It means that an
objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.
Prosecutors should consider whether there is any question over the admissibility of certain evidence. In doing so, prosecutors should assess:
a) the likelihood of that evidence being held as inadmissible by the court; and
b) the importance of that evidence in relation to the evidence as a whole.
- Is the evidence reliable?
- Is the evidence credible?
In considering the EVIDENTIAL test, prosecutors should consider:
- RELIABILITY of evidence
- ADMISSIBILITY of evidence
- CREDIBILITY of evidence
- SUFFICIENTCY of evidence
RACS
Prosecutors must be:
FAIR, OBJECTIVE and EVEN-HANDED in their approach
Prosecutors must not allow:
the PROTECTED CHARACTERISTICS of any suspect, victim or witness to influence their decision
Prosecutors must not:
be affected by IMPROPER or UNDUE PRESSURE from any source
Prosecutors must always act:
in the interests of justice and NOT solely for purpose of obtaining a conviction
Prosecutors should not start or continue with prosecutions which amount to:
an abuse of process
Prosecutions may only start or continue a prosecution when:
the case has passed BOTH stages of the FULL CODE TEST.
What is the ONLY exception to passing both stages of FULL CODE test??
when the TRESHOLD TEST is being applied to keep a suspect in custody after charge and not all evidence is yet available
