The Decision to Prosecute – John Terry



Footballer, John Terry, is shortly to appear before a Magistrates’ Court having been charged with a criminal offence.  Every court appearance, whether it is by a celebrity footballer or a person who is not well known, follows the making of decision to prosecute. So who makes these decisions, which can often have a serious impact on peoples’ lives, and on what basis are the decisions made?

The decision to prosecute in all but the most minor criminal offences is made by the Crown Prosecution Service who decide whether a person should be charged with a criminal offence and, if so, what the offence or offences should be.  The decision is made in accordance with the Code for Crown Prosecutors which is available on the internet.  The police apply the same principles in deciding whether to charge or summons a person in the less serious cases for which they are responsible.

The police and other investigators are responsible for conducting enquiries into an allegation that a crime may have been committed.  Every case that a prosecutor receives from the police or other investigators is reviewed.  The prosecutor must ensure that he or she has all the information they need to make an informed decision about how best to deal with the case.  This will often involve them providing guidance and advice to police and other investigators about lines of inquiry and evidential requirements.

Once all relevant evidence has been gathered the prosecutor must apply the Code for Crown Prosecutors which has two stages; the evidential stage and the public interest stage.
In considering the evidential stage the prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge.  Any potential defence to the charge must be considered and a case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.

A realistic prospect of conviction is an objective test based solely on the prosecutor’s assessment of the evidence and any information that he or she had about any defence that might be put forward by the suspect.  Essentially, for a case to pass the evidential test the prosecutor must have formed an objective view that a court is more likely than not to convict the defendant of the charge or charges alleged.  It should be noted that this is of course a wholly different test from that which a court will apply if the case goes to trial where the defendant can only be convicted if the court is sure of guilt.

In considering the evidential stage the prosecutor will have to consider such things as, can the evidence actually be used in court and is it reliable?

With regard to the public interest stage it is the general rule that where there is sufficient evidence to justify a prosecution it will usually take place unless there are public interest factors militating against prosecution which outweigh those in favour of charging a suspect with an alleged crime.  In simple terms, the more serious the alleged offence or the suspect’s record of criminal behavior the more likely it is that a prosecution will be required in the public interest.

Whilst deciding whether a prosecution is in the public interest can be a complex process in some cases here are some of the more common public interest factors tending in favour of prosecution:-

  1. A conviction is likely to result in a significant sentence;
  2. The alleged offence involved the use of a weapon;
  3. The victim of the alleged offence was serving the public, i.e. a member of the emergency services;
  4. The offence was premeditated or carried out by a group;
  5. The victim was especially vulnerable, i.e. very young or very old;
  6. There are grounds to believe that the offence is likely to be continued or repeated.

It can be seen that the decision to prosecute can sometimes be far from straightforward and is always of the utmost importance to a person who might be charged with an alleged crime.  It is strongly recommended that anybody who has been or thinks they might be charged with a criminal offence seeks expert legal advice at the earliest possible stage both in order to examine the charging process and to consider the making of representations that the person should not be charged with an offence.

Andrew J. Hobson
Solicitor Advocate
Hine Solicitors

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