How Much Evidence Do the Crown Prosecution Service [CPS] Need to Charge You?

PUBLISHED ON October 14, 2021

Our lawyers and associates at Hudson Marshall Solicitors answer hundreds of questions every year, which are different variations of “What kind of proof is needed for a conviction?” and “How much evidence is needed to charge someone?

The Role of the Police and the CPS

Every year, thousands of people across England and Wales are arrested by the police on suspicion of having committed a criminal offence.

The CPS is the litigating body of the UK criminal justice system. It prosecutes people after the police collect enough evidence and an investigation is complete.

The CPS carries out most of the prosecutions in Wales and England. However, some prosecutions are also initiated privately by:

His Majesty’s Revenue and Customs [HMRC], the Environment Agency, the Department for Work & Pensions [DWP], the Royal Society for the Prevention of Cruelty to Animals [RSPCA], the Serious Fraud Office (SFO), the Financial Conduct Authority (FCA), UK Border Agency & Local Authorities.

How Much Evidence is Needed to Charge Someone?

Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction and that prosecuting is in the public interest.

A Realistic Prospect of Conviction – The 1st Stage

This means asking whether a court is more likely than not to find the defendant guilty when it’s heard all the evidence.

To answer this question, the prosecutor must consider whether the evidence is reliable and credible and whether anything might undermine the case against the defendant.

This test is different from the test the court applies at trial. When a case gets to trial, the jury must be sure that a defendant is guilty in order to convict them.

At Hudson Marshall Solicitors, we can work with you to put forward a defence file that undermines the case against you. In many cases, this can stop the case against you so that it does not even make it to court.

If the case doesn’t pass the first stage of the test, the CPS can’t proceed to the next stage, no matter how serious or sensitive the case.

The Public Interest Test – The 2nd Stage

For the second stage of the legal test, the prosecutor again reviews the evidence and asks: ‘Is it in the public interest to prosecute?’

To answer this question, they must consider the seriousness of the offence, the harm caused to the victim, the impact on communities, and the suspect’s age and maturity at the time of the offence.

A prosecution will go ahead unless a prosecutor decides that public interest factors against a prosecution outweigh those in favour of a prosecution.

The CPS should consider each of the following questions:

a) How serious is the offence committed?

The more serious the offence, the more likely it is that a prosecution is required.

b) What is the level of culpability of the suspect?

The greater the suspect’s level of culpability, the more likely it is that a prosecution is required.

c) What are the circumstances of and the harm caused to the victim?

The circumstances of the victim are highly relevant. The more vulnerable the victim’s situation or the greater the victim’s perceived vulnerability, the more likely it is that a prosecution is required.

d) What was the suspect’s age and maturity at the time of the offence?

The criminal justice system treats children and young people differently from adults, and significant weight must be attached to the age of the suspect if they are a child or young person under 18.

The best interests and welfare of the child or young person must be considered, including whether a prosecution is likely to have an adverse impact on their future prospects that is disproportionate to the seriousness of the offending.

e) What is the impact on the community?

The greater the offender’s impact on the community, the more likely a prosecution is required.

f) Is prosecution a proportionate response?

In considering whether prosecution is proportionate to the likely outcome, the following may be relevant:

The cost to the CPS and the wider criminal justice system, especially where it could be regarded as excessive when weighed against any likely penalty.

g) Do sources of information require protection?

In cases where public interest immunity does not apply, special care should be taken when proceeding with a prosecution where details may need to be made public that could harm sources of information, ongoing investigations, international relations or national security. It is essential that such cases are kept under continuing review.

Our lawyers have vast experience in persuading prosecuting bodies that there is no realistic prospect of a conviction prior to charge decisions being made. In cases in which the prosecution maintains that there is a realistic prospect of a conviction, we have also been successful in persuading the prosecution that a prosecution is not in the public interest based on factors specific to our clients.

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