To Prosecute or Not To Prosecute: What are the Questions?

One of the main problems with the legal system in our country is that there is massive difference between what people think the law does and what it actually does. I constantly see petition after petition demanding new laws for this, that or the other, as if having a law will answer all the injustice people feel.

But it won’t — and it doesn’t. Having a law for something is only one step in the process. How that law is applied is a whole other kettle of fish. It’s worth noting that for the purposes of this blog I am only referring to Criminal Law, and not civil or private law.

I am not a trained lawyer of any kind, but I take a keen interest in the law. I find it is actually quite easy to understand the basic principles of law, and the guidelines — what I struggle with is how that is supposed to match with the way law is practised. Nevertheless, it’s worth knowing a few little things about the structure of the legal system, and most of the information is out there, easy to find. I am using the CPS Guidelines in this blog.

Anyway, here’s the basic premise of thought. In order to charge someone with an offence the police must present all evidence of the alleged offence to the Crown Prosecution Service (CPS) who will assess it and decide whether the evidence passes the test to charge and prosecute the suspect. It should be noted that the suspect remains legally “innocent until proven guilty” at this stage, no matter how “obvious” it might seem. In basic terms, the simple cases can be decide on by the police, with CPS guidance, but in complex cases the CPS will make the decision overall.

Let’s consider this in a case of an assault which has been complicated with lots of factors such as questions about who was involved, and so on. Just pretend this isn’t so “easy.”

3.3 Prosecutors should identify and, where possible, seek to rectify evidential weaknesses, but, subject to the Threshold Test (see section 5), they should swiftly stop cases which do not meet the evidential stage of the Full Code Test

The CPS has a duty to stop cases where they do not feel there is enough evidence to pursue it. This is where the law is intended to protect the notion of “innocent until proven guilty.” In cases of Assault, for example, if all the CPS is given is a statement, but absolutely no physical evidence, they might well have to state that without evidence they cannot risk wrongful prosecution of an innocent person.

(Yes, I know, I know — I am a major campaigner against false allegations. I will come back to that.)

For this blog, let us assume we do have plenty of what appears to be physical evidence.

Victim (more correctly called “claimant”)
We have a victim of the crime who has been harmed. Assault does NOT require their to be physical wounds as verbal assault, and the threat of assault to the person are in fact laws that already exist. However, to simplify this post, let’s get sterotypical and say they have had a serious beating and there are many bruises. Evidence collection might include:

  • photographs of wounds
  • CCTV footage of the incident
  • Trace DNA found on the victim and correspondingly on the accused
  • Forensic evidence such as markings, imprints, etc.
  • All corroborating any witness statements
  • …and so on…

The Accused
In order to have been accused, the Police must have means to suspect their involvement. Witness statements, physical evidence and so on. The Police are also required to check that the accused has no specific defences that would preclude them from the crime — e.g. a solid alibi placing them at a different location, and so on. It is the duty of the Police to present such evidence as clearly and unbiased, even if their “gut feeling” is that they have the “right person.” Again, remember that no matter how strong the evidence might seem, the accused is still legally innocent until proven guilty.

3.6 Prosecutors review every case they receive from the police or other investigators. Review is a continuing process and prosecutors must take account of any change in circumstances that occurs as the case develops, including what becomes known of the defence case.

If you have been watching the news and seen the Liam Allan case where the prosecution refused to provide evidence to the defence team prior to trial — evidence that exonerated him completely — you would be absolutely right is asking what the hell happened to statement 3.6 of the guidelines. I dare say, that is what the Police and CPS are now trying to cover their arses on.

The Full Code Test, Part 1: The Evidence

4.2 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.

This is supposedly there to make sure there is balance, and that any evidence on the side that might seek to disprove the cases is also considered. Put simply, if there is a strong piece of evidence that casts “reasonable doubt” then the CPS must be careful about their decision to prosecute.

4.4. “… A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.”

So, no matter how bad the injuries, nor how much sympathy there is for the victim, if the evidence is not strong enough to be confident of conviction, the CPS must not proceed.

An example — the victim might have described the attacker to the police, and their suspect might be a visual match, but if there was simply no physical evidence to match the injuries to the suspect, then it might not be enough to secure a conviction. It’s not just if there is evidence, it is also if the evidence is strong enough.

4.5 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…

Again, consider a case like Liam Allan’s — his defence evidence had so much of an impact, the Judge stopped the entire case. You might ask how it got so far. And you’d be right to ask that. You might want to say that must be rare.

You’d be wrong. I personally know of at least five cases where the accused could never have committed the offence — it was physically impossible — and yet all went to court, and two of those five even got convicted. This should not be possible under 4.5. but somehow…

Admissible, Reliable, Credible
In simple terms, can the evidence be used, legally, in a court room? For example, we often here things about “illegal searches” or “contaminated evidence” and this is not a simple matter. There are strict rules on how evidence is collected and handled. Sometimes, the slightest error in this could even end up freeing a guilty person because a weapon used simply wasn’t logged into the station properly. So, despite DNA matches and everything — one tiny bit if bad paperwork and a dangerous offender is on the streets again.

Is that witness reliable or credible? They might well be sure they saw the person carry out the assault, but when it turns out they’d got through 8 pints of lager and 10 shots of vodka that night, and their contact lenses had fallen out…well…a good barrister could damage that evidence easily. It might also be that the key witness neglected to tell the police they knew the victim well and had a vested interest in the prosecution of the accused: that might bring into question the credibility of their statement. Their motive for being so “certain” might be questioned.

You might well see all these exciting questions asked in interesting courtroom dramas on TV, but in reality, the CPS are supposed to ask them before even deciding to go to trial.

The Full Code Test, Stage 2: The Public Interest
It is well worth knowing that even when all the evidence has been collected, AND the CPS thinks there is enough to secure a conviction, this does not guarantee that they will seek to do so, or to go to court. Not in ALL cases, anyway.

4.8 It has never been the rule that a prosecution will automatically take place once the evidential stage is met. A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour.

You might want to ask why on earth it isn’t a rule, and maybe that it should be. The reason there is this clause is because not all crimes are as serious. A murder, serious assault, major drug dealing case — it would indeed be astounding that such cases didn’t go to court. However, a small, first offence that can be dealt with outside the courts to the benefit of the victim — and an attempt to avoid the common downward pattern of criminality — might be better served by issuing a Police Caution. But such cases would be decided on a case-by-case basis.

The CPS have a set of questions to apply to the offence in order to decide whether to take a case to court. Remember, however, this second stage test only happens after the first stage — the evidential — has already been passed:

  • How serious is the offence?
  • What is the level of culpability/involvement of the suspect?
    For example, if the suspect is a young teenage member of a gang who was merely present at the time of an assault, this question might be relevant as a conviction for them, if ending in custodial sentence, could prove worse in the long run. Most criminals merely learn to be better criminals in prison.
  • What are the circumstances of, and the harm to, the victim?
    Should this matter? Yes. A punch up between two brothers who have fallen out over the contents of the will left by a relative is not the same as a racially motivated physical attack on a police officer or paramedic in the line of duty.
  • Was the suspect under the age of 18 at the time of offence?
    This will have a major impact on the way sentencing is carried out, and on some factors of the crime. Young age does no automatically mean a suspect will be excused, and legal responsibility begins at age 10, but a question must be asked about the long term effect of conviction on a young member of society and whether losing another young person in “the system” will be in the public interest.
  • and so on…

To Prosecute or Not to Prosecute
This is where we need to ask some serious questions about cases like Liam Allan. His was a case involving multiple counts of rape and sexual assault. You might want to ask how on earth his case passed the Two-Stage Full Code test. And that is simple.

Jerry Hayes, the prosecuting barrister, apologised to Mr Allan and presented no evidence against him on the day the trial collapsed.

“It was the right thing to do,” he later wrote on Twitter. “[The messages] were not disclosed to anybody — not in unused, not sent to the CPS, not on caselines.”

The evidence that the CPS had been given — which now appears to be nothing other than the allegation made by claimant — somehow passed the Full Code test. I’d be interested to know what that was, exactly. But it now turns out that the Police had withheld evidence that could have ended the two year bail ordeal that young man went through. Had the CPS been given all the evidence from the outset, it now appears that the case would have failed at Stage 1.

So, what the bloody hell were the police up to? Why did they not pass on the messages? Why did it take them 2 years? What right do they have to be so one sided with someone’s life? Why did the claimant get to swan off on their happy-go-lucky life, whilst leaving a young man and his family terrified for his future for two years?

Above all, I really hope this issue doesn’t get dumped into a long, drawn-out “inquiry” which will just end up as “lessons need to be learnt…”

If you want to know more about how that feels, please visit my page Lies and Injustice: a true Diary of a False Allegation for an insider view of a current case (written in pseudonym with all identity hidden) — “Rick” is 19 months into his wait.




Self Published author, also writes as @inasmanywords. Campaigner for justice: especially supporting the falsely accused, and children.

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Colin Ward

Colin Ward

Self Published author, also writes as @inasmanywords. Campaigner for justice: especially supporting the falsely accused, and children.

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