The decision to prosecute # The Criteria A prosecution may only proceed if: - there is a *reasonable prospect of a conviction*; and - a prosecution is in the *public interest*. # Reasonable prospect of conviction In determining whether there is a reasonable prospect of a conviction, regard must be had to: - all the *admissible evidence*; and - the reliability and [[Credibility]] of the evidence; and - the possibility of evidence being excluded; and - any possible defence; and - whether the prosecution witnesses are available, competent and compellable; and - any conflict between eye-witnesses; and - whether there is any reason to suspect that evidence may have been concocted; and - how the witnesses are likely to present in court; and - any possible contamination of evidence; and - any other matter relevant to whether a jury or magistrate would find the person guilty. # Public interest ^f77ce4 If there is a reasonable prospect of a conviction, consideration must be given to whether the prosecution is in the public interest. The prosecution must proceed unless there are public interest factors tending against prosecution which outweigh those tending in favour. Public interest factors include: ## Offence related factors - the seriousness of the offence; and - the age of the offence ## Offender related factors - the offender’s culpability; and - the offender’s antecedents and background; and - the age, physical health, mental health or disability of the offender; and - whether the offender is willing to co-operate in the investigation or prosecution of others, or the extent to which the offender has done so. ## Victim related factors - the attitude of the victim to a prosecution; and - the entitlement of the victim to compensation; and - the age, physical health, mental health or disability of the victim. ## Other factors - community protection; and - the likely sentence; and - the prevalence of the offence and the need for specific and general deterrence; and - the need to maintain public confidence in constitutional institutions such as the courts and Parliament; and - whether the consequences of a conviction would be unduly harsh or oppressive; and - any circumstances that would prevent a fair trial; and - the age, physical health, mental health or disability of any witnesses; and - the obsolescence or obscurity of the law; and - whether the prosecution would be perceived as counter-productive, for example, by bringing the law into disrepute; and - the availability and efficacy of any alternatives to prosecution; and - the likely length of a trial; and - whether a sentence has already been imposed on the offender which adequately reflects the criminality; and - any mitigating or aggravating circumstances. In the following types of cases, particular attention must be given to whether a prosecution is in the public interest: ## Child offenders The prosecution of a child is a severe step. The public interest will not normally require the prosecution of a child who is a first time offender if the offence is not serious. A young person who has committed an offence in the context of a consenting sexual relationship with another young person. An example of such a case is sexual penetration of a child under 16 where the offender is 18 and the complainant is 15. In such cases, the following factors should be taken into account: - the ages, maturity and intellectual capacity of the complainant and the offender; and - whether the offender and complainant were or are in a relationship; and - whether the complainant was capable of consenting and did consent; and - whether the offending involved any grooming, duress, coercion or deception; and - the attitude of the complainant and his or her family or guardians towards prosecution. Offenders with cognitive impairments This includes offenders with intellectual disabilities, acquired brain injuries, mental illnesses, acute personality disorders and neurological disorders. It may not be in the public interest to prosecute such an offender where the offence is not serious, the offender’s cognitive impairment reduces their moral culpability, the offender is of no danger to the community and the prosecution is likely to result in an unconditional discharge. Persons who commit offences while detained involuntarily in psychiatric hospitals In such cases, regard must be had to: whether the offence was committed while the offender was resisting detention. It may not be in the public interest to prosecute a mentally ill person who was detained involuntarily for resisting that detention the person’s treatment and medication regime both at the time of the offence and at the time the prosecution is being considered whether a prosecution would be likely to be harmful to the person or medically inappropriate community protection. 2. Most prosecutions will proceed if there is a reasonable prospect of a conviction. While there may be public interest factors tending against a prosecution, in most cases the appropriate course will be to proceed with the prosecution and for those factors to be put to the court in mitigation of sentence. 3. A decision whether to prosecute must not be influenced by: political pressure or interference the race, religion, sex, national origin, political associations, activities or beliefs of the offender or any other person involved personal feelings concerning the offence, the offender or a victim possible political advantage or disadvantage to the Government or any political group or party the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution decision.