A draft new Code for Crown Prosecutors presently open for consultation is intended to take a more focused, proportionate and effective approach to criminal enforcement. The Code is the overarching document that all prosecutors must follow in deciding whether or not a suspect should be charged. What could have potentially far-reaching ramifications in respect of the prosecution of regulatory offences is the shift in emphasis in the public interest test, which could lead to a reduction in the number of prosecutions.

The new Code contains much which is similar to earlier versions. However, in terms of the changes it includes:

  • A more succinct format to avoid duplication with existing legal guidance in key areas
  • Efforts to use plain English, presumably to make the Code more widely understood by the public
  • A new section bringing into sharper focus the need for considerations of the admissibility, reliability and credibility of evidence
  • A streamlined approach to deciding whether or not it is in the public interest for a suspect to be prosecuted, including broad questions to consider rather than a long list of particular factors
  • Questions for prosecutors about the seriousness of the offending, the culpability of the suspect and the impact on victims and community
  • A question within the public interest section asking prosecutors to consider whether bringing a prosecution is proportionate to the likely outcome

Like previous Codes, the new Code tells prosecutors they must be sure there is a "realistic prospect of conviction" before deciding whether a prosecution would be in the public interest. However, what stands out is the guidance on proportionality as part of the public interest test. In telling prosecutors to consider whether a prosecution is "proportionate to the likely outcome", it asks them to take account of the cost to the prosecution service and the wider criminal justice system of bringing a case to Court, "especially where it could be regarded as excessive when weighed against any likely penalty".

But does this go far enough? After all, reference to proportionality was included in previous editions of the Code and prosecutors paid regard to it.

Whilst the new Code does seem to place more emphasis on the option of out of Court disposals, will this necessarily result in a reduction in the number of prosecutions, all in the name of proportionality? It remains to be seen whether there will be any change in regulatory enforcement or if things will continue as before.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.