The Decision to Prosecute, the Discretion to Prosecute and the Code for Crown Prosecutors

While there is no formal requirement for private prosecutors to satisfy the Code for Crown Prosecutors, at Edmonds Marshall McMahon, we consider it necessary and important to do so. The exercise of prosecutorial discretion is central to the comprehensive and independent service we offer our clients.

The decision to prosecute

The Code for Crown Prosecutors sets out the approach to making a decision to prosecute, and keeping that decision under review. The Full Code Test has two stages: (i) deciding whether there is sufficient evidence to provide a realistic prospect of conviction, and (ii) the public interest test.

The Prosecution of Offences Act 1985 entitles the DPP to take over the conduct of private prosecution proceedings at any stage[1] for the purpose of continuing or discontinuing them[2]. The CPS may decide to discontinue a private prosecution where either the evidential sufficiency stage or the public interest stage of the “Full Code Test” is not met. Prosecutors must apply the principles of the European Convention on Human Rights in accordance with the Human Rights Act 1998.

The Supreme Court has recently considered whether the decision by a public prosecutor to bring criminal proceedings against a person is capable of engaging Article 8 – the right to private and family life.

In SXH (Appellant) v The Crown Prosecution Service (Respondent) [2017] UKSC 30, it was accepted that the prosecutor had reasonable cause to believe the defendant to be guilty of the offence with which she was charged and that the law relating to the offence is compatible with Article 8. Nonetheless, the appellant contended that the decision to prosecute her was a breach of her Article 8 rights.

The appellant was a Somalian national, a member of a minority clan, who had fled her country after suffering severe violence, including rape and the murder of her parents. Upon entering the United Kingdom she was prosecuted for possession of the false identity document with which she entered, under s.25 of the Identity Cards Act 2006. She spent five months in custody on remand during which time there was a case review in which the prosecutor decided that her case did not provide her with a defence under s.31 of the Immigration and Asylum Act 1999. She was subsequently granted asylum and the CPS decided that it would not be in the public interest to continue with the prosecution. The appellant was released from custody after the CPS offered no evidence against her. The appellant pursued a claim for damages against the CPS for breach of her Convention rights under Article 8. The decision challenged was the initial decision to prosecute.

SXH argued that “proper investigation should have led the CPS to realise at an early stage that she had a defence under section 31 and in any event that a prosecution was not in the public interest”[3].

While criticism is made of the CPS for the length of time it took to conclude that the appellant was likely to succeed in a section 31 defence, there was an apparent reluctance of the judiciary to intervene in the prosecutor’s application of the public interest test. Perhaps it is because the public interest test allows for the exercise of discretion according to the facts and merits of each case.

In dismissing the appeal, the Supreme Court stated the following: the difficulty for the appellant in advancing the claim that the decision to prosecute her was a violation of her human rights is that it is accepted that the offence under section 25 is compliant with her Convention rights, and it was conceded in the courts below that the CPS was reasonably entitled to conclude at the time of the decision to prosecute that the evidential test was satisfied. It is difficult to envisage circumstances in which the initiation of a prosecution against a person reasonably suspected of committing a criminal offence could itself be a breach of that person’s human rights. It is true that the CPS is not bound to prosecute in every case, depending on its view of the public interest, but I do not see that the fact that in this jurisdiction a prosecution is not obligatory makes a difference. Whether it is in the public interest to prosecute is not the same as whether a prosecution would unjustifiably interfere with a right protected by article 8.[4]

This is not to say that detention for the purpose of prosecuting a criminal offence is not capable of engaging Article 8. Consideration of Article 5, 6 and 8 remain essential in deciding whether there is a public interest in prosecuting.

If prosecuting authorities are aware – or ought to have become aware –  that the basis for a proposed prosecution no longer exists, or that a defence is available to the defendant which would provide a complete answer to the crime charged, and they fail to act on that information in order to secure the defendant’s release, “that is an obvious instance of a failure to have respect for the defendant’s right to a private life.”[5]

The discretion to prosecute

In a lecture before the Legal Action Group in 2013, Sir Keir Starmer QC MP, former DPP, explored the decision not to prosecute in circumstances where there is enough evidence to do so: If there is enough evidence, is a prosecution required in the public interest?

Keir Starmer concluded that “prosecutorial discretion is a good thing. It takes the edges off blunt criminal laws; it prevents injustice; it provides for compliance with international obligations; and it allows compassion to play its rightful part in the criminal justice response to wrongdoing. The blunt instruments that criminal law statutes necessarily have to be can be honed into compassionate and appropriate casework decisions by the exercise of the public interest discretion.”[6]

Whether it tends for or against initiating or continuing a prosecution, the exercise of discretion is not only good, but essential. It preserves the integrity of the “public interest” it seeks to uphold.


Marie-Claire Amuah
Edmonds Marshall McMahon

5th May 2017


[1] Section 6(2) Prosecution of Offences Act 1985

[2] ibid, section 23

[3] SXH (Appellant) v The Crown Prosecution Service (Respondent) [2017] UKSC 30, para 33

[4] ibid, para 34

[5] ibid, para 45

[6] Keir Starmer, Legal Action Group annual lecture, 2013