The decision to prosecute a person for a crime represents the beginning of what can be a challenging and daunting process. It is vital that legal advice is sought as soon as possible. In many cases there is useful work that can be done before the first appearance at court to put you in the best possible position.
A decision to prosecute does not mean that a person has been found guilty. Instead all that has been determined is that there is sufficient evidence to require them to attend court.
In many cases it will be the Crown Prosecution Service (CPS) who decide whether a person should be charged and with what offence(s). The CPS are a public body whose role it is to bring prosecutions on behalf of the state. In making their decision the CPS must apply what is called the full code test. This requires them to consider
- whether there is a realistic prospect of a conviction
- whether it is in the public interest to prosecute.
Where appropriate and often in less serious cases it may be that a member of the police called an evidential review officer (ERO) will instead make the decision to charge. In doing so the ERO must also apply the full code test.
Once a decision has been made to prosecute, a charge at the police station or a written requisition are the 2 most common ways of beginning court proceedings.
If a person was a) never arrested, or b) arrested but subsequently released under investigation, the police will normally send them a written requisition. This document will set out the offence(s) and the date and venue of the person’s first appearance at court. Sometimes the requisition will be accompanied with the prosecution papers but in most cases they will instead have to be requested from the CPS.
Appearing in Court
Typically the first appearance at court will be within 3 or 4 weeks or sometimes sooner. Therefore it is very important that legal advice is sought as soon as possible upon receipt of the requisition.
If a person was arrested and detained at the police station they will likely be charged if a decision to prosecute is made while they are in custody. Similarly if they were released on bail they may be charged on their return when they are brought back into custody.
When a person is charged the custody sergeant will read out the offence(s) and provide them with a copy of the charge sheet which sets out the offence(s). The person will be asked whether they wish to comment and any response will be noted on the charge sheet.
The custody sergeant will then decide whether the person should be released on bail to attend court at a later date, and may impose conditions to that bail.
The most common examples of bail conditions are prohibitions on any direct or indirect contact with the complainant and/or prosecution witnesses, a prohibition not to attend an address or location, a requirement to report at a police station, a condition of residence at an address, and/or a curfew. Bail conditions may only be imposed if they are both necessary and proportionate. In some cases bail conditions can be varied or removed, if for example they are unworkable in practice. This is something your solicitor can help you with.
There are various grounds for denying bail to a person who has been charged. The most common are that there are substantial grounds to believe they would either fail to surrender to court, interfere with witnesses, and/or commit further offences if released.
If there are concerns about whether a person should be released on bail the custody sergeant may listen to representations from the CPS, the investigating police officers, the person detained and/or their legal representative.
If the custody sergeant denies a person bail they must be brought before the Magistrates’ Court in custody as soon as is practicably possible. If the person is a youth the custody sergeant should attempt to release them into the care of the local authority rather than detain them at the police station.
In all circumstances it is extremely important that a person attends their court appearance. Failure to do so without a good reason is a separate offence which can be punished with a fine and/or imprisonment. A solicitor can help a person who is worried about whether they are able to attend their court appearance.
The start of a criminal case is exceptionally important and it is the first stage a person will be entitled to the evidence against them. In almost all cases they will be required to enter a plea of guilty or not guilty at their first appearance at court.
Getting legal advice from a criminal solicitor is critical to ensure that a person’s rights are protected and they receive advice on the law, legal process and evidence against them. If you or someone you know faces the prospect of being charged or requisitioned they should contact a solicitor without delay.