Until 1986, the decision of whether to prosecute or not lay with the police. Although particularly challenging or important cases were decided by the DPP. This was changed however in the Prosecution of Offenders Act 1985 which made it the duty of the CPS to prosecute, an also set out its independence.
Whilst initially the CPS played a subordinate and reactive role to the police this has now changed, the Criminal Justice Act 2003 (s 29) has introduced a “statutory charging scheme” whereby the police must refer cases to the CPS for them to decide whether and in what to charge (except for the most minor cases). The Code for Crown Prosecutors guides the CPS as to their actions. Even with this change the CPS rely heavily on the police for information, obviously, and are therefore influenced by the presentation of the case to them by the police.
According to Baldwin and Hunt (1998) the police remain heavily reliant on the police for information and therefore the police are able to influence the decision to prosecute by their portrayal of the facts & Sanders (2010) thought that prosecutors only rubber stamp prosecutions decided by the police.
Prosecution 2 Stage Test
1. Evidential Test Stage (Code Para 4): the prosecutor must be satisfied that there is enough evidence to provide a realistic prospect of conviction. It is an objective test (which basically says the court must be more likely than not to convict) and if it is not passed then prosecution must not continue in any circumstance (para 4.5). The test used to decide whether or not to keep a suspect in custody whilst evidence is gathered is slightly different and called the threshold test.
- Threshold Test: “is there reasonable suspicion that the suspect has committed an offence, and if there is, is it in the public interest to charge the suspect” (Para 6.1 Code for Crown Prosecutors)
2. 2. Public Interest Test Stage: Even though some cases may have the same factors, they are likely to weigh different amounts depending on differing circumstances and there is no book of weights as such.
- Some factors in favour of prosecution would be: use of a weapon, position of trust, vulnerability of the victim, hate crimes and likelihood of repetition.
- Those against could include: mistaken/accidental crimes, views of the victim, health and probable punishments (if nominal). Views of the victim although more important now, are being pushed down slightly, as the CPS wants to reinforce they are not lawyers for the victim.
Main Document: Code for the Crown Prosecutors (issued under s. 10 of the POA 1985) and is currently in its seventh edition (which has reintroduced a proportionality factor, which states that prosecution must be proportionate given the cost to the CPS and wider criminal justice systems).
If the victim disagrees with a decision not to prosecute, they may be able to prosecute privately (it was shown you cannot PP if a caution has been given however, Jones v Whalley ). Sanders, 2010 noted however PP’s rarely work and are not a good way of holding the CPS to account (using the Stephen Lawrence case as an example). It also difficult to prove the CPS is being “wednesbury unreasonable” if you want to go down the JR route and even the DPP has acknowledged the difficulty in using JR as a remedy (e.g R v Killick  where it was held the decision was wrong, but not unreasonable and therefore not judiciable in JR).
The Magistrates Bench
The magistrate’s bench is still predominantly old and white, at this point professional and lay magistrates rarely sit on a mixed bench and there doesn’t appear to be a consistent approach between magistrates. Whilst they take longer to decide cases, they are still cheaper than district judges, and Saunders has noted that whilst cost should not be the overriding factor on where to trial someone.
Mode of Trial
All criminal offences are classified depending on how they will be tried in accordance with the Criminal Justice Act 1977 s14:
1. TRIAL ON INDICTMENT (in the crown court): the most serious offences including Murder, Robbery, Rape and Blackmail.
2. SUMMARY OFFENCES (trailed by magistrates): including motoring offences, common assault and threatening behaviour.
3. TRIABLE EITHER WAY: theft, burglary, arson and some assaults and minor sexual offences. If there is damage to property, anything under £5,000 is only by summary. The Defendant can choose if the value is unknown.
In these triable either way cases, the accused can be brought before the MC and asked if this were to proceed to trial would he plead guilty or not guilty (s.17A Magistrates Courts Act 1980). The court must also listen to arguments from both side to determine which court (M or CC) is more appropriate for the trial (S 19(3) MCA 1980), although the defendant is able to choose a particular court himself (unless the MC decides it should be heard by the CC).
Vennard, 1985, suggested those trial in the CC are generally more likely to be acquitted of their offences. CC also tend to impose longer sentences, and this is why it has been suggested the D’s right to choose could be abolished. Criticisms are that this is placing efficiency in front of due process.
Here if a case is not finalised at the hearing, then the D may either be released on Bail or remanded in custody. The MC decides this based on the Bail Act 1976.
S4(1) dictates a statutory presumption in favour of bail, subject to schedule 1. Schedule 1 dictates that for non-imprisonable offences only those who haven’t appeared in court before can be remanded, and that for imprisonable offences, in schedule 2, if there are “substantial grounds for believing that the D will if released on bail commit further offences or fail to submit to custody, interfere with witness or obstruct the court of justice”.
Bail Act 1967 S3 states people can be released on bail per conditions of attendance at court, not commiting another offence or obstruct the coure of justice. S5(1) requires recording of reasons for imposing bail, and why they imposed conditions. Appeals against the allowing or unallowing of bail are allowed (The Bail Amendment Act 1993 (for the CPS) & s60 Criminal Justice Act 1982)
Provision of Bail hostels should increase the number of bails given out, as overcorwding and a lack of fixed address often influence decisions.
- Charges are reasd out and the Defendant will say whether or not they plead guilty. If they plead not guilty, the cross examining begins.
McConville argues that the magitrates courts rely heavily on police information, assuming it to be impartial, which shows why there is a high rate of convcition. She also argues that defence solicitors so not have enough time to prepare an actual challenge to the reports. Thus giving a structural advantage to prosecutors.
In recent years, specialst MC's have been introduced. over 100 MC's exist purely for cases of domestic violence. These courts have an independant victim advocate purely to focus on the needs of the victim.
Significant cuts have risen recently, implemented through the Legal Aid, Sentencing and Punishment of Offenders Act 2012. There is still available the Public Defence Service who you are eligible to use if through considering 5 factors (the interests of justice test) (from Sch 3 Access to justice Act 1999):
1. Whether the individual would be likely to lose his or her liberty or suffer serious damage to reputation
2. Whether the determination of any matter arising in proceedings may involve consideration of a substantial question of law
3. Whether the individual may be unable to understand the proceedings or state his or her own case
4. Whether the proceedings involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual
5. Whether it is in the interests of another person for the individual to be represented.
Applications are determined by MC clerks but research has suggested they don’t pay much attention to these criteria and instead just go with their gut (Young and Wilcox, 2007)