Few documents shape the early life of a criminal case as much as the guidance the Crown
Prosecution Service applies when deciding whether to charge. For defence solicitors, understanding
how that decision is reached is not academic, it determines what you challenge, when you make
representations, and how you advise a client at the police station.
CPS guidance is not a single rulebook. It is a layered framework, anchored by the Code for Crown
Prosecutors are supported by an extensive library of legal guidance on specific offences. Knowing
how it fits together lets you anticipate a prosecutor’s reasoning rather than react to it.
The Code for Crown Prosecutors
The Code is the foundational public document, issued by the Director of Public Prosecutions, setting
out the principles every prosecutor must follow. For defence solicitors, it is essential reading,
because it tells you exactly what a prosecutor is required to weigh.
At its centre is a two-stage test, the Full Code Test applied before bringing or continuing a
prosecution.
Stage one: the evidential stage
The prosecutor must be satisfied there is a realistic prospect of conviction on each charge. This is an
objective standard: would a properly directed court, acting reasonably, be more likely than not to
convict? It is not the criminal standard of proof, and the prosecutor must factor in the likely defence
case and the admissibility of evidence. If a case fails this stage, it must not proceed, no matter how
serious the allegation.
Stage two: the public interest stage
Only if the evidential stage is met does the prosecutor consider the public interest. A prosecution
will usually follow unless the factors against it outweigh those in favour. Prosecutors weigh the
seriousness of the offence, the suspect’s culpability, the harm to any victim, the suspect’s age, and
whether prosecution is proportionate. No single factor is decisive.
The Threshold Test
Not every decision can wait for a complete file. Where a suspect poses a substantial bail risk and the
evidence is not yet fully available; prosecutors may apply the Threshold Test instead. Its conditions
must all be met: reasonable grounds to suspect the offence, a realistic expectation that further
evidence will follow, justification for an immediate decision, and substantial grounds to object to
bail.
Crucially, a case charged on the Threshold Test must be reviewed against the Full Code Test once the
anticipated evidence arrives. For the defence, that review is an opportunity that the case can fall away
if the expected evidence never materialises.
What this means for defence solicitors
- Frame representations around the Full Code Test. Showing the evidential stage is not met, weak identification, an unreliable witness, and an inadmissible admission speak the prosecutor’s own language.
- Don’t overlook the public interest stage, especially for low-harm offences, youths, or disproportionate prosecutions.
- Diarise the Threshold Test review and press for it where a client has been charged on that basis.
- Know the Victims’ Right to Review, which can both challenge and revive charging decisions.
The bottom line
CPS guidance is best understood as a structured way of thinking, not a maze of documents. When
you frame representations around the same tests a prosecutor is bound to apply, you stop arguing
past the decision-maker and start arguing inside their framework, which is where cases are won
early.
Common questions about CPS guidance
What is the Full Code Test? The two-stage test prosecutors apply before charging: a realistic
prospect of conviction, then whether prosecution is in the public interest. Both must be satisfied.
Is the Code for Crown Prosecutors legally binding? Prosecutors are required to apply it, but it is
guidance rather than a statute. Decisions can be challenged where it has not been followed properly.
Where can I read CPS guidance? The Code and the Legal Guidance library are published on the CPS
website. Always work from the current online version.