Comparative Criminal Law and Enforcement: England and Wales

The CPS was established by the Prosecution of Offences Act 1985, and for the first time provided for a systematic and standardized approach toward prosecution decisions across England and Wales. Before its introduction the police were responsible for most criminal prosecutions, and so procedures and practices varied across the forty-three regional policing areas.

The reform of prosecution was designed to encourage a more cost-effective approach and to promote fairness. The latter was to be achieved by providing for the review of each case by independent and legally qualified prosecutors. Greater consistency and accountability was to be sought through the use of a nationwide code, the details of which are published by the CPS. Each decision to prosecute should only be taken if it satisfies the "evidential" and the "public interest" tests described below. The annual report of the Crown Prosecution Service sets out the Code for Crown Prosecutors and the details of these tests.

The evidential sufficiency test is that the prosecutors must be convinced that the evidence in a case will provide "a realistic prospect of conviction." To make this judgement they must review the evidence to ensure that it is usable in court and not excluded because of the rules of evidence or because of the way it has been collected. After this they must decide whether the evidence is reliable in the sense of coming from an honest and competent witness who is available to attend court.

The public interest test asks whether it would be in the public's interest to continue with the prosecution. For example, a case of a very minor offense committed by a defendant close to death due to a terminal illness is unlikely to be prosecuted. The Code for Prosecutors sets out factors that are in favor of prosecution and those that are against prosecuting a case.

A prosecution might be dropped—discontinued in the language of the CPS—for the following public interest reasons: the likely penalty would be very small or nominal (e.g., an absolute or conditional discharge); the crime was committed as a result of a mistake; the loss or harm involved could be described as minor; there has been a long delay between the trial and the date of the offense (except when a case is serious or the delay has been caused by the defendant, or the complexity of the offense has required a lengthy investigation); the victim's health is likely to be adversely affected by the trial; the defendant is elderly, or mentally or physically ill; the defendant has made reparation to the victim; or there are security reasons for not revealing information that might be revealed during a trial.

The CPS has no investigative function. However, in addition to their main task of reviewing all cases sent to them by the police, they discuss and negotiate with the police on matters of charging standards, for example the offense characteristics that should be taken into consideration when deciding whether a sexual offense should be charged as a rape or as an indecent assault. Finally, a high-profile aspect of their role is they act as advocates to present cases in the magistrates' courts as prosecutors. In 2000 there were 2,100 lawyers and 3,700 other staff working for the CPS.

Some cases do not go through the standard procedure because of the status of the offender. Special rules of procedure apply to those offenders who are young or are diagnosed as mentally ill. Criminal liability starts at the age of ten in England and Wales. There are different stages relating to the age of the offender that determine both the criminal procedure and the range of dispositions for younger offenders. Under ten years of age the person has no criminal liability; from ten to fourteen they are regarded as children; from fifteen to seventeen as young offenders.