Driving Solicitors and The Code for Crown Prosecutors

April 4, 2017 10:04 am Published by Driving Solicitors

Driving Solicitors and The Code for Crown Prosecutors

In layman’s terms the Crown Prosecution Service (CPS) is the lawyers who represent the police and prosecute the driving offence at the Magistrates’ court.

The following is taken form The Code for Crown Prosecutors. Driving Solicitors will discuss this document and outline how it may affect your case.

The Code for Crown Prosecutors.

The Crown Prosecution Service is the principal public prosecuting authority for England and Wales and is headed by the Director of Public Prosecutions. The Attorney General is accountable to Parliament for the Service.

Driving Solicitors say: The Crown Prosecution Service are the main public authority for prosecuting criminal offences. 

The Crown Prosecution Service is a national organisation consisting of 42 Areas. Each Area is headed by a Chief Crown Prosecutor and corresponds to a single police force area, with one for London. It was set up in 1986 to prosecute cases investigated by the police. 

Although the Crown Prosecution Service works closely with the police, it is independent of them. The independence of Crown Prosecutors is of fundamental constitutional importance. Casework decisions taken with fairness, impartiality and integrity help deliver justice for victims, witnesses, defendants and the public.

The Crown Prosecution Service co-operates with the investigating and prosecuting agencies of other jurisdictions.

The Director of Public Prosecutions is responsible for issuing a Code for Crown Prosecutors under section 10 of the Prosecution of Offences Act 1985.

Driving Solicitors say: The CPS have many regional offices and prosecute cases local to their region. Therefore, if an offence takes pace in Oxford, it will be prosecuted in Oxford Magistrates’ Court by the local prosecution service. It was set up in 1986 to prosecute the criminal cases investigated by the police.

The CPS are independent of the Police and will make the important decisions regarding your case. Decisions made by the CPS will be taken with impartiality, integrity and fairness. The CPS deliver justice for the public, the defendant and the victim.    

Contact: Driving Solicitors.

INTRODUCTION 

The decision to prosecute an individual is a serious step. Fair and effective prosecution is essential to the maintenance of law and order. Even in a small case a prosecution has serious implications for all involved — victims, witnesses and defendants. The Crown Prosecution Service applies the Code for Crown Prosecutors so that it can make fair and consistent decisions about prosecutions.

The CPS must consider a case properly before taking the decision to prosecute an individual for an alleged offence. 

The Code helps the Crown Prosecution Service to play its part in making sure that justice is done. It contains information that is important to police officers and others who work in the criminal justice system and to the general public. Police officers should apply the provisions of this Code whenever they are responsible for deciding whether to charge a person with an offence.

This Case provides guidelines for the CPS to meet when deciding to prosecute.

The Code is also designed to make sure that everyone knows the principles that the Crown Prosecution Service applies when carrying out its work. By applying the same principles, everyone involved in the system is helping to treat victims, witnesses and defendants fairly, while prosecuting cases effectively.

The CPS must consider a case properly before taking the decision to prosecute an individual for an alleged offence.

GENERAL PRINCIPLES 

Each case is unique and must be considered on its own facts and merits. However, there are general principles that apply to the way in which Crown Prosecutors must approach every case.

The CPS must consider each case on its own merit. On the facts of each individual case. Without knowing the facts of individual case. We have many clients comparing their cases to those they have read online. It is important to understand that every case is different and must be prosecuted and defended on its own merit. 

Crown Prosecutors must be fair, independent and objective. They must not let any personal views about ethnic or national origin, disability, sex, religious beliefs, political views or the sexual orientation of the suspect, victim or witness influence their decisions. They must not be affected by improper or undue pressure from any source.

This is obvious and self explanatory. 

It is the duty of Crown Prosecutors to make sure that the right person is prosecuted for the right offence. In doing so, Crown Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction.

This is very important and must be considered when completing any Notice of Intended Prosecution and s.172 notice. Identification of the driver is key to so many defences.  

Crown Prosecutors should provide guidance and advice to investigators throughout the investigative and prosecuting process. This may include lines of inquiry, evidential requirements and assistance in any pre-charge procedures. Crown Prosecutors will be proactive in identifying and, where possible, rectifying evidential deficiencies and in bringing to an early conclusion those cases that cannot be strengthened by further investigation.

The CPS provide help and assistance to the police. The police may approach the CPS when deciding to charge a individual and for what offence. The CPS do have the authority to amend or change charges at court.  

It is the duty of Crown Prosecutors to review, advise on and prosecute cases, ensuring that the law is properly applied, that all relevant evidence is put before the court and that obligations of disclosure are complied with, in accordance with the principles set out in this Code.

The CPS are involved in the early stages of any prosecution.   

The Crown Prosecution Service is a public authority for the purposes of the Human Rights Act 1998. Crown Prosecutors must apply the principles of the European Convention on Human Rights in accordance with the Act.

The Human Rights Act 1998 will apply. 

THE DECISION TO PROSECUTE 

In most cases, Crown Prosecutors are responsible for deciding whether a person should be charged with a criminal offence, and if so, what that offence should be. Crown Prosecutors make these decisions in accordance with this Code and the Director’s Guidance on Charging. In those cases where the police determine the charge, which are usually more minor and routine cases, they apply the same provisions.

The Crown prosecution service will usually chose the charge for more serious offences. The police will likely chose minor driving offences. 

Crown Prosecutors make charging decisions in accordance with the Full Code Test, other than in those limited circumstances where the Threshold Test applies

Strict tests apply when deciding to prosecute.

The Threshold Test applies where the case is one in which it is proposed to keep the suspect in custody after charge, but the evidence required to apply the Full Code Test is not yet available.

Decisions are made on whether or not the defendant is granted bail.

Where a Crown Prosecutor makes a charging decision in accordance with the Threshold Test, the case must be reviewed in accordance with the Full Code Test as soon as reasonably practicable, taking into account the progress of the investigation.

Decisions are made in accordance with the Test.
REVIEW 

Each case the Crown Prosecution Service receives from the police is reviewed to make sure that it is right to proceed with a prosecution. Unless the Threshold Test applies, the Crown Prosecution Service will only start or continue with a prosecution when the case has passed both stages of the Full Code Test.

The CPS will make a decision with the Test in mind. 

Review is a continuing process and Crown Prosecutors must take account of any change in circumstances. Wherever possible, they should talk to the police first if they are thinking about changing the charges or stopping the case. Crown Prosecutors should also tell the police if they believe that some additional evidence may strengthen the case. This gives the police the chance to provide more information that may affect the decision.

The CPS make a judgment call on the strengths and weaknesses of the evidence.

The Crown Prosecution Service and the police work closely together, but the final responsibility for the decision whether or not a charge or a case should go ahead rests with the Crown Prosecution Service.

The CPS make the final decision on whether or not to prosecute a case 

THE FULL CODE TEST 

The Full Code Test has two stages. The first stage is consideration of the evidence. If the case does not pass the evidential stage it must not go ahead no matter how important or serious it may be. If the case does pass the evidential stage, Crown Prosecutors must proceed to the second stage and decide if a prosecution is needed in the public interest. The evidential and public interest stages are explained below.

Evidence is key. The CPS will not prosecute a case without any evidence. 

THE EVIDENTIAL STAGE 

Crown Prosecutors must be satisfied that there is enough evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge. They must consider what the defence case may be, and how that is likely to affect the prosecution case.

The CPS may decide to prosecute if they believe they have a reasonable prospect of conviction.

A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates or judge hearing a case alone, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a separate test from the one that the criminal courts themselves must apply. A court should only convict if satisfied so that it is sure of a defendant’s guilt.

The CPS will consider as to whether or not the there is a reasonable prospect of conviction. 

When deciding whether there is enough evidence to prosecute, Crown Prosecutors must consider whether the evidence can be used and is reliable. There will be many cases in which the evidence does not give any cause for concern. But there will also be cases in which the evidence may not be as strong as it first appears.

Crown Prosecutors must ask themselves the following questions:

Can the evidence be used in court? 

a. Is it likely that the evidence will be excluded by the court? There are certain legal rules which might mean that evidence which seems relevant cannot be given at a trial. For example, is it likely that the evidence will be excluded because of the way in which it was gathered? If so, is there enough other evidence for a realistic prospect of conviction?

Is the evidence reliable? 

b. Is there evidence which might support or detract from the reliability of a confession? Is the reliability affected by factors such as the defendant’s age, intelligence or level of understanding?

c. What explanation has the defendant given? Is a court likely to find it credible in the light of the evidence as a whole? Does it support an innocent explanation?

d. If the identity of the defendant is likely to be questioned, is the evidence about this strong enough?

e.  Is the witness’s background likely to weaken the prosecution case? For example, does the witness have any motive that may affect his or her attitude to the case, or a relevant previous conviction?

f. Are there concerns over the accuracy or credibility of a 6 witness? Are these concerns based on evidence or simply information with nothing to support it? Is there further evidence which the police should be asked to seek out which may support or detract from the account of the witness?

The CPS must make a decision of the strength and weaknesses of the evidence. Who is the witness, are they reliable, are they of good or bad character?

Crown Prosecutors should not ignore evidence because they are not sure that it can be used or is reliable. But they should look closely at it when deciding if there is a realistic prospect of conviction.

The Crown must not ignore evidence relating to the case – see: driving solicitors.

THE PUBLIC INTEREST STAGE 

In 1951, Lord Shawcross, who was Attorney General, stated: “It has never been the rule in this country — I hope it never will be — that suspected criminal offences must automatically be the subject of prosecution”. (House of Commons Debates, volume 483, column 681, 29 January 1951.)

The public interest must be considered in each case where there is enough evidence to provide a realistic prospect of conviction.

Although there may be public interest factors against prosecution in a particular case, often the prosecution should go ahead and those factors should be put to the court for consideration when sentence is being passed. A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour, or it appears more appropriate in all the circumstances of the case to divert the person from prosecution.

The CPS must consider if it is in the public interest to prosecute the defendant. 

Crown Prosecutors must balance factors for and against prosecution carefully and fairly. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the suspect. Some factors may increase the need to prosecute but others may suggest that another course of action would be better.
The following lists of some common public interest factors, both for and against prosecution, are not exhaustive. The factors that apply will depend on the facts in each case.
Some common public interest factors in favour of prosecution

The scales of justice must be considered. 

The more serious the offence, the more likely it is that a prosecution will be needed in the public interest. A prosecution is likely to be needed if:

a.  a conviction is likely to result in a significant sentence;

b.  a conviction is likely to result in a confiscation or any other order;

c.  a weapon was used or violence was threatened during the commission of the offence;

d.  the offence was committed against a person serving the public (for example, a police or prison officer, or a nurse);

e.  the defendant was in a position of authority or trust;

f.  the evidence shows that the defendant was a ringleader or an organiser of the offence;

g.  there is evidence that the offence was premeditated;

h.  there is evidence that the offence was carried out by a
group;

i.  the victim of the offence was vulnerable, has been put in considerable fear, or suffered personal attack, damage or disturbance;

j.  the offence was committed in the presence of, or in close proximity to, a child;

k.  the offence was motivated by any form of discrimination against the victim’s ethnic or national origin, disability, sex, religious beliefs, political views or sexual orientation, or the suspect demonstrated hostility towards the victim based on any of those characteristics;

l. there is a marked difference between the actual or mental ages of the defendant and the victim, or if there is any element of corruption;

m.  the defendant’s previous convictions or cautions are relevant to the present offence;

n.   the defendant is alleged to have committed the offence while under an order of the court;

o.   there are grounds for believing that the offence is likely to be continued or repeated , for example, by a history of recurring conduct;

p.   the offence, although not serious in itself, is widespread in the area where it was committed; or

q.  a prosecution would have a significant positive impact on maintaining community confidence.

The CPS make a judgment call on the strengths and weaknesses of the evidence.

Deciding on the public interest is not simply a matter of adding up the number of factors on each side. Crown Prosecutors must decide how important each factor is in the circumstances of each case and go on to make an overall assessment.

Each case must be considered on its own merit.

The relationship between the victim and the public interest 

The Crown Prosecution Service does not act for victims or the families of victims in the same way as solicitors act for their clients. Crown Prosecutors act on behalf of the public and not just in the interests of any particular individual. However, when considering the public interest, Crown Prosecutors should always take into account the consequences for the victim of whether or not to prosecute, and any views expressed by the victim or the victim’s family.

CPS does not assist the victims. They’re only role is to prosecute the case.

It is important that a victim is told about a decision which makes a significant difference to the case in which they are involved. Crown Prosecutors should ensure that they follow any agreed procedures.

It is important the prosecution keep the victim updated on any decisions made regarding their case. 

The most important thing to understand when looking at a case is how the CPS came about the decision to prosecute and whether or not they have met the test. Is it in the public interest and do they have a reasonable prospect of conviction.

Our next blog will be the second part to this issue.

We must thank the CPS and the The Code for Crown Prosecutors for the above information.

Please see: www.drivingsolicitors.co.uk should you have any further questions.

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