A new Code for our time

On Monday Kier Starmer QC, the Director of Public Prosecutions, published the seventh version of the Code for Crown Prosecutors, the second under his tenure as DPP. The Code sets out the criteria to consider when a public prosecutor decides whether or not to prosecute a suspect and is of fundamental importance across the justice system. Each year thousands of offences are committed, detected but not prosecuted because the CPS or police consider the test set out in the Code and discontinue proceedings. The impact of the Code extends beyond the CPS, it is the benchmark relied upon by almost all agencies with a prosecutorial function: the enforcement division of the Financial Services Authority, for example, takes the Code into account in considering whether to prosecute offences under section 401 and 402 FSMA and the Health and Safety Executive enforcement division has its own version of the code, closely modelled on the CPS’s.

The structure of the decision making remains familiar. The decision to prosecute is based on the ‘full code test’ which sets out two hurdles to overcome: the evidential test and the public interest test. In conducting the evidential test prosecutors must ask themselves, based on the evidence before them, is there sufficient evidence to provide a reasonable prospect of conviction. The new code contains additional guidance on admissibility, reliability and credibility of evidence.

The public interest test has been transformed from a non exhaustive list of factors for or against prosecution to a set of overarching principles. So where a prosecutor would have considered factors such as “whether the victim of the offence was vulnerable”, or “whether a weapon was used”, the prosecutor will now consider the broad question of “what are the circumstances of and the harm caused to the victim”. The principled approach is clearer and more flexible because it enables the prosecutor to determine which principle applies rather than choosing one of the factors set out in the previous Code or taking the subjective step of inventing a new one.

A new principle, for which there was no precursor in the previous Code, is proportionality – “the cost to the CPS and the wider criminal justice system, especially where it could be regarded as excessive when weighed against any likely penalty”. This factor alone will not be sufficient to stop an otherwise triable case but it is a factor to weigh in the balance with other public interest considerations. Some may question whether cost factors have a place in the scales of justice, whether some may now escape prosecution because their case is simply too expensive to bring. In the wake of government cuts, in this age of austerity, perhaps this concession was inevitable: justice at any cost is a price society cannot afford and it is very unlikely that any serious offender will escape prosecution as a result. It is important that prosecutors choose which cases merit prosecution with the utmost care and accept that prosecution will not always be necessary. Diversion of the case with a non criminal outcome is also often a fair and proportionate response to offending and costs much less.

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