How do the police decide whether to charge a suspect?

Islington Police Station...in case you weren't sure

A question I’m often asked by clients (and in a roundabout way by people arriving at this blog using searches that ask the question in a variety of ways), is “how do the police decide whether to charge or take no further action (NFA)?”

What are the options?

Let’s have a quick think about what options are available to the police at the end of an investigation.

First, they can charge or report you for summons to attend court.  Charging means that you are given police bail and are required to attend court in person.  A summons is an order from the court for you to attend or for you to send a solicitor on your behalf.  In many cases where a person is summonsed, the court will allow you the option of entering a plea by post.

Second, you may be given a caution.  These can be a simple caution, which on the face of it is a warning not to be naughty in future, or it can be a conditional caution.  Conditions could include a requirement to pay for the cost of damage or compensation, etc.  Either way, you should ALWAYS take legal advice from an experienced solicitor before accepting a police caution.  Cautions may prevent you working in certain areas, such as with children or vulnerable adults and may prevent you entering some countries like Australia and the USA.

Third, the police can issue you with a fixed penalty notice.  If you decide to accept the notice – and there’s not usually a good reason to refuse to accept one – then you can decide whether to admit the offence or contest it and ask for a court date.  Accepting the fixed penalty notice does not mean you accept you committed a crime.

Finally, the police may decide to take no further action.  This means that they have not been able to find sufficient evidence to choose one of the other options and so the case is finished.  If they receive further evidence in future the case can be resurrected.

How do they decide whether to charge?

Evidence

First, the police or a CPS solicitor will consider the evidence obtained by the police and decide whether there is sufficient evidence to charge.

They should consider whether the evidence is admissible, reliable and credible.  Experience makes me wonder how well versed in the law of evidence the decision makers are since they frequently seek to rely upon inadmissible evidence – in one case I’m handling at the moment they have failed to serve any admissible evidence whatsoever!

Once the CPS solicitor has identified the relevant evidence they should move on to consider whether there is a realistic prospect of conviction if the evidence were to be put before a jury or magistrate.  If the answer is “no” then the decision should be to take no further action.  If they answer is “yes” then the solicitor should move on to the public interest test.

Public interest

Lord Shawcross was Attorney General in 1951 when he said, “[i]t 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.”  The point he is getting at is that just because somebody has committed a crime it does not mean that it is always in the public interest to prosecute them.

The Crown Prosecution Service takes the view that crimes should always be prosecuted unless there is a good reason not to.  Good reasons typically mean some kind of infirmity or disability of the defendant, the fact that they are already serving a lengthy sentence and national security issues.  In cases of mercy killings it is common for the CPS to decide that pursuing the relative who ended their loved one’s life is not in the public interest.

Putting it together

Once the prosecutor has decided that there is sufficient evidence to charge and that it is in the public interest he or she will make a final decision on the outcome.  If the offence is minor and the suspect has made a full confession then it is likely that the decision will be to caution.  If the offence is more serious or there has not been a confession then the prosecutor will authorise the police to charge and bail (or hold in custody) the person to appear in court.

This process is called the Full Code Test and should be applied before any decision is made to charge a person with an offence or continue with a prosecution after one has begun.

                                                                                                                                                        

Comments

  1. How common is it for a caution to be offered where the police/CPS think they don't have enough evidence to get a conviction in court?

    In the recent debate in the media about cautions being used for serious offences, one justification given was that a caution was better than nothing. My understanding, backed up by your description here, is that a caution shouldn't be used as an alternative to NFA but only as an alternative to a charge.

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    Replies
    1. A caution should only be doled out where there is good evidence that the person is guilty of the offence - an important element of that is the suspect must confess to the crime to receive a caution.

      In practice that doesn't always happen. A particular problem I've identified in the past year or two is suspects I've advised in the police station who put forward a defence in interview that accepts the act but denies the mental element of the crime. Police officers either don't always recognise the distinction or don't care because I've come across a a number who put forward a defence yet are cautioned after I've left the station without taking further advice from me.

      So no, it should never be used as an alternative to an NFA.

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  2. Long time since you posted this but here's one for you... Have you ever heard anyone not getting an NFA? Meaning they weren't charged, told they don't have to come back to answer bail anymore and are effectively a free man? But the police simply went silent? Do the police HAVE to send you notice of CPS decision? Or does it mean they are still investigating, given up, or something else? I'm asking this as my friend was arrested, I was interviewed under caution and after 2 years we've still heard nothing... My friend was told he didn't need to come back to answer bail 7 months ago. Both of us did no comment interviews. We are perplexed :s

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