Code for Crown Prosecutors to include proportionality test
The CPs has published a draft revised Code for Crown Prosecutors, which will be the seventh version implemented in its 26 year history. The draft includes a test which requires consideration to given to whether a prosecution is proportionate to the costs involved in bringing it.
The Code is the prescribed basis upon which the CPs (and other Crown agencies acting a prosecutor) decide whether a suspect should be charged and, if so with which offences. It also deals with the role of the Crown in the conduct of a prosecution. The "Full Test" is split into two parts - "the evidential test" and the "public interest test" and stipulates various factors which should be considered when determining whether both tests have been met. For the "evidential test" to be met, the prosecutor must be satisfied that the quality of evidence is such that there is a 'realistic prospect of conviction'. Notwithstanding the evidential test being met, a prospective prosecution may fail the "public interest test" if there is a persuasive argument against prosecution (e.g. the disproportionate impact a conviction for a minor offence may have on a suspect's career). The Code sets out various factors, although for serious offences it will nearly always be in the public interest for a suspect to be prosecuted. Both the "evidential test" and "public interest test" must be met for a prosecution to take place. The prosecutor has a duty to apply the test prior to charge and to review the matter (to ensure both tests remain met) if the circumstances of the case change.
The draft Code asks prosecutors to consider whether a prosecution is proportionate to the likely outcome and to take into account the cost to the CPs and wider criminal justice system "especially where it could be regarded as excessive when weighed against any likely penalty". The last version of the Code to include a test on costs proportionality was published in 1992.
A full copy of the draft Code can be found below:-
Articles are intended as an introduction to the topic and do not constitute legal advice.