How Crown prosecutors decide charges: the CPS tests

What CPS guidance actually consists of

Not a single rulebook. It is a layered framework anchored by the Code for Crown Prosecutors and supported by an extensive library of legal guidance on specific offences.

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 states precisely what a prosecutor is required to weigh.

Three general duties sit above the tests and are worth knowing because they can be argued. Prosecutors must act in the interests of justice and not solely for the purpose of obtaining a conviction. They must be even-handed, with a duty to protect the rights of suspects and defendants while serving victims. And they must apply Convention principles, in accordance with the Human Rights Act 1998, at each stage of a case.

The evidential stage

The prosecutor must be satisfied there is enough evidence to provide a realistic prospect of conviction on each charge.

The Code defines that as meaning an objective, impartial and reasonable jury, 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. It is an objective standard and it is not the criminal standard of proof, which is why a case can pass this stage and still result in acquittal.

Three elements of the assessment matter to the defence:

• Admissibility, credibility and reliability. The prosecutor considers whether evidence can be used at all, whether there are reasons to question its accuracy or integrity, and whether there are reasons to doubt its credibility.
• The defence case. The assessment must include the impact of any defence, and of other information the suspect has put forward or on which they might rely.
• Unexamined material. Prosecutors must consider, at this stage and throughout, whether there is material affecting the sufficiency of evidence, including material held by the police that has not been examined and material that further enquiries might produce.

If a case does not pass this stage it must not proceed, no matter how serious or sensitive the allegation. That is not a discretion.

The public interest stage

Reached only if the evidential stage is satisfied, and frequently underused by the defence.

The Code is explicit that it has never been the rule that a prosecution will automatically take place once the evidential stage is met. A prosecution will usually follow unless the prosecutor is satisfied that public interest factors tending against prosecution outweigh those in favour.

Paragraph 4.14 of the Code sets out the questions prosecutors should work through. They cover the seriousness of the offence, the suspect’s culpability, the circumstances of and harm caused to the victim, the suspect’s age and maturity at the time of the offence, the impact on the community, whether prosecution is a proportionate response, and whether sources of information require protecting. No single factor is decisive, and the weight given to each depends on the facts.

One point is easy to miss. Where there is sufficient evidence, the prosecutor must consider not only whether to prosecute but whether the public interest is better served by an out-of-court disposal. For low-harm offending, youths, and cases where prosecution would be disproportionate, that is the argument to make.

The Threshold Test and its five conditions

Not every decision can wait for a complete file. Where the evidence is not yet fully available, prosecutors may apply the Threshold Test instead, and because it is a departure from the Full Code Test the Code requires all five conditions to be rigorously examined.

1. Reasonable grounds to suspect that the person to be charged has committed the offence, on an objective assessment of the evidence, taking into account the impact of any defence or information the suspect has put forward.
2. Further evidence can be obtained to provide a realistic prospect of conviction.
3. The seriousness or circumstances of the case justify making an immediate charging decision.
4. There are substantial grounds to object to bail.
5. It is in the public interest to charge the suspect.

All five must be met. Where any one is not, there is no need to consider the others: the Threshold Test cannot be applied and the suspect cannot be charged.

The fifth condition is the one most often forgotten, including in summaries of the test that list only four. Public interest is not deferred until the Full Code Test review; it applies at the point of charge.

The duty to keep the decision under review

A charging decision is not a single event. Prosecutors are under a continuing duty to review, and the Code requires them to consider the sufficiency of evidence at every stage rather than only at the outset.

That matters practically because cases change. Material emerges through disclosure. A witness becomes unwilling. An expert report undermines the central plank. Each of those is a reason to invite a fresh review against the Full Code Test rather than to wait for trial to expose the weakness.

The point applies with more force in a system under delay. With Crown Court cases frequently listed years ahead, the gap between charge and trial gives evidence time to degrade, and our guide to court delays in the UK sets out the scale of it.

What this means for defence solicitors

The practical principle is simple: argue inside the framework the prosecutor is bound to apply rather than around it.

Frame representations around the Full Code Test. Weak identification, an unreliable witness, an inadmissible admission: these speak to the evidential stage in the prosecutor’s own language, and the Code requires the impact of what you put forward to be taken into account.

Make the public interest argument separately. It is a distinct decision with its own criteria, and for youths, low-harm offending and disproportionate prosecutions it may succeed where an evidential challenge would not. Raise the out-of-court disposal option explicitly.

Get in early. Pre-charge engagement means the material you provide forms part of the assessment rather than an attempt to reverse it afterwards. The same submission carries less weight after a charging decision has been made.

Track the Threshold Test review. If your client was charged on that basis, the Full Code Test review is a scheduled opportunity for the case to end.

Challenging a charging decision

The Code is guidance rather than statute, but prosecutors are required to apply it, and a failure to do so properly is the foundation of any challenge.

Routes differ depending on what you are challenging. A decision to charge is ordinarily met by representations to the prosecutor and, where the Code has not been applied properly, by judicial review, which is available but rarely succeeds given the deference courts show to prosecutorial discretion. Our guide to judicial review covers the grounds and the statutory filters.

A decision not to charge, or to discontinue, engages the Victims’ Right to Review scheme. It allows a victim to seek a review of a qualifying CPS decision not to bring or to continue proceedings, and it can result in a decision being reversed and a prosecution commenced. Defence practitioners should be aware of it for the same reason prosecutors are: a case that has ended may not be finally over.