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ENF 15.1 Application and purpose

Application

ENF 15.1.1 G

This chapter applies to all firms and individuals employed by firms, approved persons, appointed representatives, and any other persons who may be involved in committing criminal offences that the FSA has power to prosecute under the Act.

Purpose

ENF 15.1.2 G

The purpose of this chapter is to set out the FSA's powers to prosecute criminal offences under sections 401 of the Act (Proceedings for Offences) and 402 of the Act (Power of the FSA to institute proceedings for certain other offences), and to provide guidance on how the FSA intends to exercise these powers.

ENF 15.2 Introduction

ENF 15.2.1 G

Under section 401 of the Act (Proceedings for Offences), the FSA has power to prosecute the following offences:

  1. (1)

    carrying on or purporting to carry on a regulated activity without authorisation or exemption (under section 23);

  2. (2)

    making false claims to be authorised or exempt (under section 24);

  3. (3)

    communicating an invitation or inducement to engage in investment activity in breach of the restrictions on financial promotion (under section 25);

  4. (4)

    misleading the FSA and other contraventions in relation to the exercise of Treaty rights (under paragraph 6 of Schedule 4);

  5. (5)

    performing or agreeing to perform functions in breach of a prohibition order (under section 56(4));

  6. (6)

    failing to register a copy of listing particulars on or before publication (under section 83(3));

  7. (7)

    offering new securities to the public before publishing a prospectus required by the listing rules made under section 84 of the Act (section 85(2));

  8. (8)

    issuing an advertisement, or other information specified in the listing rules, without prior approval or authorisation from the competent authority (under section 98(2));

  9. (9)

    failing to cooperate with, or giving false information to, FSA appointed investigators (under section 177);

  10. (10)

    failing to comply with provisions about control over authorised persons (under section 191);

  11. (11)

    carrying on, or purporting to carry on, business in contravention of a consumer credit prohibition (under section 203(9));

  12. (12)

    making false claims to be a person to whom the general prohibition does not apply as a result of Part XX of the Act (Provision of Financial Services by Members of the Professions) (under section 333);

  13. (13)

    providing false or misleading information to an auditor or actuary (under section 346);

  14. (14)

    disclosing confidential information in contravention of the statutory restrictions under sections 348 and 350(5) (see section 352);

  15. (15)

    failure by a director of an insurer carrying on long-term insurance business to notify the FSA of a general meeting to propose a resolution for voluntary winding up (under section 366(3));

  16. (16)

    Misleading statements and practicesoffences (under section 397);

  17. (17)

    Misleading the FSA (under section 398).

ENF 15.2.2 G

Under section 402 of the Act (Power of the FSA to institute proceedings for certain other offences), the FSA has power to prosecute the following offences:

  1. (1)

    insider dealing under Part V of the Criminal Justice Act 1993 (under section 402(1)(a));

  2. (2)

    Breaches of the prescribed regulations relating to money laundering (under section 402(1)(b)).

ENF 15.2.3 G

The FSA has power to prosecute these offences in England, Wales and Northern Ireland, but not in Scotland. In Scotland, the Crown Office will remain responsible for prosecutions.

ENF 15.3 The FSA's power to prosecute criminal offences

ENF 15.3.1 G

The FSA's power to prosecute criminal offences is set out in sections 401 (of the Act (Proceedings for Offences) and 402 (Power to prohibit the carrying on of Consumer Credit Act business) of the Act.

ENF 15.3.2 G

Under section 401 of the Act:

  1. (1)

    proceedings for an offence under the Act, or subordinate legislation made under the Act, may be instituted in England and Wales only:

    1. (a)

      by the FSA or the Secretary of State; or

    2. (b)

      by or with the consent of the Director of Public Prosecutions;

  2. (2)

    proceedings for an offence under the Act, or subordinate legislation made under the Act, may be instituted in Northern Ireland only:

    1. (a)

      by the FSA or the Secretary of State; or

    2. (b)

      by or with the consent of the Director of Public Prosecutions for Northern Ireland; and

  3. (3)

    except in Scotland, proceedings for an offence under section 203 (Power to prohibit the carrying on of Consumer Credit Act business) may also be instituted by the Director General of Fair Trading.

ENF 15.3.3 G

Under section 402 of the Act the FSA may, except in Scotland, institute proceedings for an offence under:

  1. (1)

    Part V of the Criminal Justice Act 1993 (Insider dealing); and

  2. (2)

    Prescribed regulations relating to money laundering.

ENF 15.3.4 G

The FSA does not have power to prosecute the offences referred to in ENF 15.3.2 G and ENF 15.3.3 G in Scotland. Public prosecution of these offences in Scotland is the responsibility of the Crown Office.

ENF 15.4 The FSA's general approach

ENF 15.4.1 G

The FSA's general policy is to pursue through the criminal justice system all those cases where criminal prosecution is appropriate. The principles the FSA will apply when it decides whether a case is appropriate for criminal prosecution are set out in ENF 15.5. When considering whether to prosecute a breach of the prescribed regulations in relation to money launderingENF 15.2.2 G (2)) the FSA will also have regard to whether the person concerned has complied with the (Guidance Notes for the Financial Sector) produced by the Joint Money Laundering Steering Group.

ENF 15.4.2 G

In relation to misleading statements and practicesoffences and insider dealing, where the FSA also has power to impose a sanction for market abuse, it will decide whether to commence criminal proceedings or impose a sanction after considering the factors set out in ENF 15.5 and ENF 15.7.2 G.

ENF 15.4.3 G

In cases where criminal proceedings have commenced or will be commenced, the FSA may consider whether also to take civil or regulatory action. That action might include:

  1. (1)

    injunctions (the FSA's policy and procedure in relation to the exercise of its powers to obtain injunctions against persons, whether authorised or not, is set out in ENF 6);

  2. (2)

    restitution (the FSA's policy and procedure in relation to the exercise of its power to obtain restitution against persons, whether authorised or not, is set out in ENF 9);

  3. (3)

    own-initiative action (the FSA's policy and procedure in relation to the exercise of its own-initiative powers in relation to firms is set out in ENF 3);

  4. (4)

    withdrawal of approval or cancellation of permission and withdrawal of authorisation (the FSA's policy and procedure in relation to its power to withdraw approval from approved persons is set out inENF 7 and its policy and procedure in relation to its power to cancel a firm'spermission and withdraw authorisation is set out in ENF 5);

  5. (5)

    prohibition of individuals from carrying out functions in connection with regulated activities (the FSA's policy and procedure in relation to its powers to make prohibition orders against individuals, whether authorised or not, is set out in ENF 8). The commencement of criminal proceedings against an individual (particularly where that individual is an approved person) will raise concerns in relation to that individual's fitness and propriety to perform functions in relation to regulated activities. The FSA may therefore consider making a prohibition order against him if proceedings result in a criminal conviction.

ENF 15.4.4 G

When it decides whether to take any of the civil or regulatory actions set out in ENF 15.4.3 G, where criminal proceedings are in contemplation, the FSA will have regard to the following factors:

  1. (1)

    whether, in the FSA's opinion, the taking of civil or regulatory action might unfairly prejudice the prosecution, or proposed prosecution, of criminal offences;

  2. (2)

    whether, in the FSA's opinion, the taking of civil or regulatory action might unfairly prejudice the defendants in the criminal proceedings in the conduct of their defence; and

  3. (3)

    whether it is appropriate to take civil or regulatory action, having regard to the scope of the criminal proceedings and the powers available to the criminal courts.

ENF 15.5 The Code for Crown Prosecutors

ENF 15.5.1 G

When the FSA decides whether to bring criminal proceedings in England, Wales or Northern Ireland, or to refer the matter to another prosecuting authority in England, Wales or Northern Ireland (see ENF 15.8.1 G), it will apply the basic principles set out in the Code for Crown Prosecutors. The November 20041 edition of the Code is set out in ENF 15 Annex 1 G.

1
ENF 15.5.2 G

Under the Code for Crown Prosecutors, the FSA will in each case apply the Full Code Test (see paragraph 5.1 of ENF 15 Annex 1 GG) 1whether:

1
  1. (1)

    there is sufficient evidence to provide a realistic prospect of conviction against the defendant on each criminal charge ('the evidential test'); and

  2. (2)

    having regard to the seriousness of the offence and all the circumstances, criminal prosecution is in the public interest ('the public interest test').

The evidential test

ENF 15.5.3 G

The FSA will apply the evidential test in accordance with the guidance contained in the Code for Crown Prosecutors (see paragraphs 5.2 to 5.51 of ENF 15 Annex 1 G G). In particular, the FSA will commence proceedings only where it is satisfied that the evidence is such that a jury or a bench of magistrates (properly directed in accordance with the law) is more likely than not to convict the defendant of the charge alleged.

1
ENF 15.5.4 G

In deciding whether there is enough evidence to prosecute, the FSA will consider whether the evidence can be used in criminal proceedings and is reliable. The FSA will not generally be able to use, or refer to, in criminal proceedings a statement made by the defendant in compliance with the FSA's compulsory powers of investigation. The FSA will only be able to use those statements where the alleged offence is either making false statements otherwise than on oath, or providing false or misleading evidence to the FSA's investigators (see section 177(4) of the Act (Offences)).

The public interest test

ENF 15.5.5 G

In each case where the evidential test is satisfied, the FSA will consider whether a prosecution would be in the public interest. This will depend on the circumstances of each individual case. The FSA will balance the factors for and against prosecution, and apply the guidelines set out in the Code for Crown Prosecutors. Only if the FSA determines that criminal prosecution is in the public interest (see paragraphs 5.6 to 5.131 of ENF 15 Annex 1 G G) will it proceed to prosecute.

1

ENF 15.6 FSA cautions

ENF 15.6.1 G

In some cases, the FSA may decide to issue a formal caution rather than to prosecute an offender. In these cases the FSA will follow the Home Office Guidance on the cautioning of offenders, currently contained in the Home Office Circular 18/1994. The FSA will not administer a caution unless it is satisfied that the following conditions are met:

  1. (1)

    there is sufficient evidence of the offender's guilt to give a realistic prospect of conviction;

  2. (2)

    the offender admits the offence; and

  3. (3)

    the offender understands the significance of a caution and gives informed consent to being cautioned.

ENF 15.6.2 G

Where the FSA decides to administer a formal caution, a record of the caution will be kept by the FSA, but the FSA will not publish the caution. The issue of a caution may influence the FSA in its decision whether or not to prosecute the offender if he offends again. If the offender is a firm or an approved person, a caution given by the FSA will form part of the firm's or approved person's regulatory record for the purposes of ENF 11.4.1 G (3). If relevant, the FSA will take the caution into account in deciding whether to take disciplinary action for subsequent regulatory misconduct by the firm or the approved person. The FSA may also take a caution into account when considering a person's honesty, integrity and reputation and his fitness or propriety to perform controlled or other functions in relation to regulated activities (see FIT 2.1.3 G).

ENF 15.7 Criminal prosecutions in cases of market abuse

ENF 15.7.1 G

The FSA's power to impose sanctions for market abuse is intended to complement the existing criminal regime for insider dealing and misleading statements and practices offences. In some cases there will be instances of market misconduct that may arguably involve a breach of the criminal law as well as market abuse as defined in the Act. When the FSA decides whether to commence criminal proceedings rather than impose a sanction in relation to that misconduct, it will take into account those factors set out in the Code for Crown Prosecutors referred to in ENF 15.5. When deciding whether to prosecute market misconduct which also falls within the definition of market abuse, application of the tests set out in ENF 15.5 may involve consideration of some of the factors set out in ENF 15.7.2 G.

ENF 15.7.2 G

The factors which the FSA may consider when deciding whether to commence a criminal prosecution for market misconduct rather than impose a sanction for market abuse include, but are not limited to, the following:

  1. (1)

    the seriousness of the misconduct: if the misconduct is serious and prosecution is likely to result in a significant sentence, criminal prosecution may be appropriate;

  2. (2)

    whether there are victims who have suffered loss as a result of the misconduct: where there are no victims a criminal prosecution is less likely to be appropriate;

  3. (3)

    the extent and nature of the loss suffered: where the misconduct has resulted in substantial loss and/or loss has been suffered by a substantial number of victims, criminal prosecution may be appropriate;

  4. (4)

    the effect of the misconduct on the market: where the misconduct has resulted in significant distortion or disruption to the market and/or has significantly damaged market confidence, a criminal prosecution may be appropriate;

  5. (5)

    the extent of any profits accrued or loss avoided as a result of the misconduct: where substantial profits have accrued or loss avoided as a result of the misconduct, criminal prosecution may be appropriate;

  6. (6)

    whether there are grounds for believing that the misconduct is likely to be continued or repeated: if it appears that the misconduct may be continued or repeated and the imposition of a financial penalty is unlikely to deter further misconduct, a criminal prosecution may be more appropriate than a financial penalty;

  7. (7)

    whether the person has previously been cautioned or convicted in relation to market misconduct or has been subject to civil or regulatory action in respect of market misconduct: where this is the case, a criminal prosecution may be appropriate;

  8. (8)

    the extent to which redress has been provided to those who have suffered loss as a result of the misconduct and/or whether steps have been taken to remedy any failures in systems or controls which gave rise to the misconduct: where such steps are taken promptly and voluntarily, criminal prosecution may not be appropriate; however, potential defendants will not avoid prosecution simply because they are able to pay compensation;

  9. (9)

    the effect that a criminal prosecution may have on the prospects of securing redress for those who have suffered loss: where a criminal prosecution will have adverse effects on the solvency of a firm or individual in circumstances where loss has been suffered by consumers, the FSA may decide that criminal proceedings are not appropriate;

  10. (10)

    whether the person is being or has been voluntarily cooperative with the FSA in taking corrective measures; however, potential defendants will not avoid prosecution merely by fulfilling a statutory duty to take those measures;

  11. (11)

    where an individual's misconduct involves dishonesty or an abuse of a position of authority or trust: in these circumstances, criminal prosecution may be appropriate;

  12. (12)

    where the misconduct in question was carried out by a group, and a particular individual has played a leading role in the commission of the misconduct: in these circumstances criminal proceedings may be appropriate in relation to that individual;

  13. (13)

    the personal circumstances of an individual may be relevant to a decision whether to commence a criminal prosecution.

ENF 15.7.3 G

The importance attached by the FSA to these factors will vary from case to case and the factors are not necessarily cumulative or exhaustive.

ENF 15.7.4 G

It is the FSA's policy not to impose a sanction for market abuse where a person is being prosecuted for market misconduct or has been finally convicted or acquitted of market misconduct (following the exhaustion of all appeal processes) in a criminal prosecution arising from substantially the same allegations. Similarly, it is the FSA's policy not to commence a prosecution for market misconduct where the FSA has brought or is seeking to bring disciplinary proceedings for market abuse arising from substantially the same allegations.

ENF 15.7.5 G

Where the FSA decides to commence criminal proceedings for market misconduct or imposes a sanction for market abuse, it may also consider taking civil or regulatory action. That action may include:

  1. (1)

    applying to court for an injunction to prevent market abuse continuing or to require the person to take steps to remedy the consequences of the abuse (see ENF 6.4);

  2. (2)

    applying to court for an order for restitution (see ENF 9.4) or exercising its administrative power to require restitution (see ENF 9.5) in relation to profits accrued by the person or loss suffered by others as a result of the abuse.

  3. (3)

    withdrawal of approval (see ENF 7) or cancellation of permission and withdrawal of authorisation (see ENF 5).

  4. (4)

    prohibition of individuals from carrying out functions in connection with regulated activities (see ENF 8).

ENF 15.7.6 G

The FSA does not have power to prosecute offences of market misconduct in Scotland. These proceedings will remain the responsibility of the Crown Office.

ENF 15.8 Liaison with other prosecuting authorities

ENF 15.8.1 G

The FSA has power to prosecute offences under the Act in England or Wales and in Northern Ireland. In addition the following authorities also have that power:

  1. (1)

    in England and Wales: the Secretary of State for Trade and Industry, the Director General of Fair Trading (in relation to offences involving the Consumer Credit Act), the Crown Prosecution Service and, in cases of serious or complex fraud, the Serious Fraud Office;

  2. (2)

    in Northern Ireland: the Secretary of State for Trade and Industry, the Director of Public Prosecutions in Northern Ireland, and in cases of serious or complex fraud, the Serious Fraud Office.

ENF 15.8.2 G

The FSA has no power to prosecute offences under the Act in Scotland where prosecution will remain the responsibility of the Crown Office.

ENF 15.8.3 G

The FSA has agreed guidelines that will establish a framework for liaison and cooperation in cases where one or more of these authorities has an interest in prosecuting any aspect of a matter that the FSA is considering for investigation, investigating or considering prosecuting. These Guidelines are set out in ENF 2 Annex 1 G G.

ENF 15 Annex 1 Code for Crown prosecutors

G

Code for Crown prosecutors

The November 2004 edition of the code is reproduced below by kind permission of the Crown Prosecution Service.

1

INTRODUCTION

1.1

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.

1.2

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.

1.3

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.

2

GENERAL PRINCIPLES

2.1

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.

2.2

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.

2.3

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.

2.4

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.

2.5

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.

2.6

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.

3

THE DECISION TO PROSECUTE

3.1

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.

3.2

Crown Prosecutors make charging decisions in accordance with the Full Code Test (see section 5 below), other than in those limited circumstances where the Threshold Test applies (see section 6 below).

3.3

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.

3.4

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.

4

REVIEW

4.1

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.

4.2

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.

4.3

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.

5

THE FULL CODE TEST

5.1

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.

THE EVIDENTIAL STAGE

5.2

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.

5.3

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.

5.4

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 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?

5.5

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 PUBLIC INTEREST STAGE

5.6

In 1951, Lord Shawcross, who was Attorney General, made the classic statement on public interest, which has been supported by Attorneys General ever since: "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.)

5.7

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 (see section 8 below).

5.8

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

5.9

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.

Some common public interest factors against prosecution

5.10

A prosecution is less likely to be needed if:

(a)

the court is likely to impose a nominal penalty;

(b)

the defendant has already been made the subject of a sentence and any further conviction would be unlikely to result in the imposition of an additional sentence or order, unless the nature of the particular offence requires a prosecution or the defendant withdraws consent to have an offence taken into consideration during sentencing;

(c)

the offence was committed as a result of a genuine mistake or misunderstanding (these factors must be balanced against the seriousness of the offence);

(d)

the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement;

(e)

there has been a long delay between the offence taking place and the date of the trial, unless:

• the offence is serious;

• the delay has been caused in part by the defendant;

• the offence has only recently come to light; or

• the complexity of the offence has meant that there has been a long investigation;

(f)

a prosecution is likely to have a bad effect on the victim's physical or mental health, always bearing in mind the seriousness of the offence;

(g)

the defendant is elderly or is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is real possibility that it may be repeated. The Crown Prosecution Service, where necessary, applies Home Office guidelines about how to deal with mentally disordered offenders. Crown Prosecutors must balance the desirability of diverting a defendant who is suffering from significant mental or physical ill health with the need to safeguard the general public;

(h)

the defendant has put right the loss or harm that was caused (but defendants must not avoid prosecution or diversion solely because they pay compensation); or

(i)

details may be made public that could harm sources of information, international relations or national security.

5.11

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.

The relationship between the victim and the public interest

5.12

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.

5.13

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.

6

THE THRESHOLD TEST

6.1

The Threshold Test requires Crown Prosecutors to decide whether there is at least a reasonable suspicion that the suspect has committed an offence, and if there is, whether it is in the public interest to charge that suspect.

6.2

The Threshold Test is applied to those cases in which it would not be appropriate to release a suspect on bail after charge, but the evidence to apply the Full Code Test is not yet available.

6.3

There are statutory limits that restrict the time a suspect may remain in police custody before a decision has to be made whether to charge or release the suspect. There will be cases where the suspect in custody presents a substantial bail risk if released, but much of the evidence may not be available at the time the charging decision has to be made. Crown Prosecutors will apply the Threshold Test to such cases for a limited period.

6.4

The evidential decision in each case will require consideration of a number of factors including:

• the evidence available at the time;

• the likelihood and nature of further evidence being obtained;

• the reasonableness for believing that evidence will become available;

• the time it will take to gather that evidence and the steps being taken to do so;

• the impact the expected evidence will have on the case;

• the charges that the evidence will support.

6.5

The public interest means the same as under the Full Code Test, but will be based on the information available at the time of charge which will often be limited.

6.6

The decision to charge and withhold bail must be kept under review. The evidence gathered must be regularly assessed to ensure the charge is still appropriate and that continued objection to bail is justified. The Full Code Test must be applied as soon as reasonably practicable.

7

SELECTION OF CHARGES

7.1

Crown Prosecutors should select charges which:

(a)

reflect the seriousness and extent of the offending;

(b)

give the court adequate powers to sentence and impose appropriate post-conviction orders; and

(c)

enable the case to be presented in a clear and simple way.

This means that Crown Prosecutors may not always choose or continue with the most serious charge where there is a choice.

7.2

Crown Prosecutors should never go ahead with more charges than are necessary just to encourage a defendant to plead guilty to a few. In the same way, they should never go ahead with a more serious charge just to encourage a defendant to plead guilty to a less serious one.

7.3

Crown Prosecutors should not change the charge simply because of the decision made by the court or the defendant about where the case will be heard.

8

DIVERSION FROM PROSECUTION

ADULTS

8.1

When deciding whether a case should be prosecuted in the courts, Crown Prosecutors should consider the alternatives to prosecution. Where appropriate, the availability of suitable rehabilitative, reparative or restorative justice processes can be considered.

8.2

Alternatives to prosecution for adult suspects include a simple caution and a conditional caution.

Simple caution

8.3

A simple caution should only be given if the public interest justifies it and in accordance with Home Office guidelines. Where it is felt that such a caution is appropriate, Crown Prosecutors must inform the police so they can caution the suspect. If the caution is not administered, because the suspect refuses to accept it, a Crown Prosecutor may review the case again.

Conditional caution

8.4

A conditional caution may be appropriate where a Crown Prosecutor considers that while the public interest justifies a prosecution, the interests of the suspect, victim and community may be better served by the suspect complying with suitable conditions aimed at rehabilitation or reparation. These may include restorative processes.

8.5

Crown Prosecutors must be satisfied that there is sufficient evidence for a realistic prospect of conviction and that the public interest would justify a prosecution should the offer of a conditional caution be refused or the offender fail to comply with the agreed conditions of the caution.

8.6

In reaching their decision, Crown Prosecutors should follow the Conditional Cautions Code of Practice and any guidance on conditional cautioning issued or approved by the Director of Public Prosecutions.

8.7

Where Crown Prosecutors consider a conditional caution to be appropriate, they must inform the police, or other authority responsible for administering the conditional caution, as well as providing an indication of the appropriate conditions so that the conditional caution can be administered.

YOUTHS

8.8

Crown Prosecutors must consider the interests of a youth when deciding whether it is in the public interest to prosecute. However Crown Prosecutors should not avoid prosecuting simply because of the defendant's age. The seriousness of the offence or the youth's past behaviour is very important.

8.9

Cases involving youths are usually only referred to the Crown Prosecution Service for prosecution if the youth has already received a reprimand and final warning, unless the offence is so serious that neither of these were appropriate or the youth does not admit committing the offence. Reprimands and final warnings are intended to prevent re-offending and the fact that a further offence has occurred indicates that attempts to divert the youth from the court system have not been effective. So the public interest will usually require a prosecution in such cases, unless there are clear public interest factors against prosecution.

9

MODE OF TRIAL

9.1

The Crown Prosecution Service applies the current guidelines for magistrates who have to decide whether cases should be tried in the Crown Court when the offence gives the option and the defendant does not indicate a guilty plea. Crown Prosecutors should recommend Crown Court trial when they are satisfied that the guidelines require them to do so.

9.2

Speed must never be the only reason for asking for a case to stay in the magistrates' courts. But Crown Prosecutors should consider the effect of any likely delay if they send a case to the Crown Court, and any possible stress on victims and witnesses if the case is delayed.

10

ACCEPTING GUILTY PLEAS

10.1

Defendants may want to plead guilty to some, but not all, of the charges. Alternatively, they may want to plead guilty to a different, possibly less serious, charge because they are admitting only part of the crime. Crown Prosecutors should only accept the defendant's plea if they think the court is able to pass a sentence that matches the seriousness of the offending, particularly where there are aggravating features. Crown Prosecutors must never accept a guilty plea just because it is convenient.

10.2

In considering whether the pleas offered are acceptable, Crown Prosecutors should ensure that the interests of the victim and, where possible, any views expressed by the victim or victim's family, are taken into account when deciding whether it is in the public interest to accept the plea. However, the decision rests with the Crown Prosecutor.

10.3

It must be made clear to the court on what basis any plea is advanced and accepted. In cases where a defendant pleads guilty to the charges but on the basis of facts that are different from the prosecution case, and where this may significantly affect sentence, the court should be invited to hear evidence to determine what happened, and then sentence on that basis.

10.4

Where a defendant has previously indicated that he or she will ask the court to take an offence into consideration when sentencing, but then declines to admit that offence at court, Crown Prosecutors will consider whether a prosecution is required for that offence. Crown Prosecutors should explain to the defence advocate and the court that the prosecution of that offence may be subject to further review.

10.5

Particular care must be taken when considering pleas which would enable the defendant to avoid the imposition of a mandatory minimum sentence. When pleas are offered, Crown Prosecutors must bear in mind the fact that ancillary orders can be made with some offences but not with others.

11

PROSECUTORS' ROLE IN SENTENCING

11.1

Crown Prosecutors should draw the court's attention to:

• any aggravating or mitigating factors disclosed by the prosecution case;

• any victim's personal statement;

• where appropriate, evidence of the impact of the offending on a community;

• any statutory provisions or sentencing guidelines which may assist;

• any relevant statutory provisions relating to ancillary orders (such as anti-social behaviour orders).

11.2

The Crown Prosecutor should challenge any assertion made by the defence in mitigation that is inaccurate, misleading or derogatory. If the defence persist in the assertion, and it appears relevant to the sentence, the court should be invited to hear evidence to determine the facts and sentence accordingly.

12

RE-STARTING A PROSECUTION

12.1

People should be able to rely on decisions taken by the Crown Prosecution Service. Normally, if the Crown Prosecution Service tells a suspect or defendant that there will not be a prosecution, or that the prosecution has been stopped, that is the end of the matter and the case will not start again. But occasionally there are special reasons why the Crown Prosecution Service will re-start the prosecution, particularly if the case is serious.

12.2

These reasons include:

(a)

rare cases where a new look at the original decision shows that it was clearly wrong and should not be allowed to stand;

(b)

cases which are stopped so that more evidence which is likely to become available in the fairly near future can be collected and prepared. In these cases, the Crown Prosecutor will tell the defendant that the prosecution may well start again; and

(c)

cases which are stopped because of a lack of evidence but where more significant evidence is discovered later.

12.3

There may also be exceptional cases in which, following an acquittal of a serious offence, the Crown Prosecutor may, with the written consent of the Director of Public Prosecutions, apply to the Court of Appeal for an order quashing the acquittal and requiring the defendant to be retried, in accordance with Part 10 of the Criminal Justice Act 2003.

The Code is a public document. It is available on the CPS Website:

Further copies may be obtained from:

Crown Prosecution Service

Communications Branch

50 Ludgate Hill

London

EC4M 7EX

Telephone: 020 7796 8442

Fax: 020 7796 8030

Email: policy.branch@cps.gov.uk

Translations into other languages are available and audio or braille copies are available. Please contact CPS Communications Branch (above) for details.