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Discretion To Prosecute Notes

Law Notes > Criminal Procedure and Evidence Notes

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A more recent version of these Discretion To Prosecute notes – written by Oxford students – is available here.

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DISCRETION TO PROSECUTE Conflicting theories:
- Structured discretion - what we have
- Legality principle - prosecute for all offences Commencing Prosecution

1. Lay an information before a magistrate a. Police, other prosecuting authorities, citizens. Mag then issues summons requiring appearance before court to answer allegation. b. Written charge - Police, CPS

2. Charge suspect with an offence a. 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. a. Where evidence strong enough for prosecution; D admits offence; caution in the public interest.

2. Reprimands and warnings - new scheme for cautioning juveniles. a. To be replaced again by LASPOA 2012 s135 - youth caution scheme instead of reprimands and warnings

3. Conditional cautions - CJA s.22 and 27 a. Carrying out a condition w/ threat of prosecution in event of failure to do so. b. 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. c. Used for things like compensation and apology letters

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

FACTORS TO CONSIDER IN DECIDING WHETHER TO PROSECUTE 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: o 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. o 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:

o 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?
o Public interest stage like above.

Controlling the discretion to prosecute
? CPS internal review procedure
? Instigate a private prosecution o See below
? Judicial review o 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.

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