CPS Charging Decisions: The Full Code Test

Since the introduction of statutory charging by the Criminal Justice Act 2003, most charging decisions for indictable and either-way offences are made by the Crown Prosecution Service (CPS) rather than the police. The police retain the authority to charge summary-only offences and certain other specified offences. The process is governed by the Director's Guidance on Charging, currently in its sixth edition.

The CPS applies the Full Code Test, which has two stages. The evidential stage asks whether there is a realistic prospect of conviction: would a properly directed jury or bench of magistrates, hearing the evidence, be more likely than not to convict? If the evidential stage is not met, the case must not proceed regardless of the seriousness of the offence. If the evidential stage is met, the public interest stage asks whether prosecution is in the public interest.

The public interest test considers factors for and against prosecution. Factors in favour include: the seriousness of the offence, the vulnerability of the victim, whether the suspect was in a position of authority, whether the offence was premeditated, and whether there is a pattern of behaviour. Factors against may include: the suspect's age, health, or mental capacity, the age of the offence, and whether prosecution is proportionate to the likely penalty. The stronger the evidence, the more likely it is that prosecution will be in the public interest.

In practice, police submit an evidential file to the CPS duty prosecutor, who may request further evidence or enquiries before making a decision. The CPS may authorise a charge, recommend an alternative charge, advise no further action, or recommend an out-of-court disposal. Where the CPS advises no further action, the police must follow this advice. The CPS has a continuing duty to review the case throughout the prosecution, and may discontinue proceedings if the Full Code Test is no longer met. Victims have the right to a review of a CPS decision not to charge under the Victims' Right to Review scheme.