33. The Crown Prosecution Service is responsible for prosecuting cases investigated by the police in England and Wales.[1] It was established by statute, which set out that its functions included taking over the conduct of criminal proceedings instituted by the police, giving advice to the police, and instituting and having the conduct of criminal proceedings where appropriate.[2] It is independent of government and, as “an objective referral authority”, is only able to act on the information provided by the police.[3] Its role is to make “independent and objective decisions about the prospect of a jury convicting of a criminal charge”.[4]
34. Prior to the formation of the Crown Prosecution Service in 1986, the police were responsible for investigating most crime, deciding whether to prosecute and conducting the prosecution.[5] When the Crown Prosecution Service was established, it took on responsibility for deciding whether to prosecute and for conducting the prosecution[6] after the police had decided to charge a suspect.[7]
35. Since 2004, the Crown Prosecution Service has made charging decisions[8] in all but minor cases.[9] It does so in accordance with The Code for Crown Prosecutors (the Code),[10] as well as its Guidelines on Prosecuting Cases of Child Sexual Abuse.[11] Prosecutors may authorise a charge or continue a prosecution against a suspect only where the ‘Full Code Test’ is passed,[12] that is:
Since 1986, in cases of sexual offences against children, where there is a realistic prospect of conviction then “there will seldom be any doubt that prosecution will be in the public interest”.[13]
36. There has been concern about the low number of prosecutions resulting from Operation Daybreak. Sue Matthews (the Crown Prosecution Service reviewing lawyer for Operation Equinox) explained that every case is different and must be considered individually.[14] While it has been accused of ‘cherry picking’ cases to prosecute,[15] the Crown Prosecution Service “in a sense do have to cherry pick” as it is only those cases where the test is satisfied that can be prosecuted.[16]
37. The factors that the Crown Prosecution Service takes into account when deciding whether to prosecute are set out in the Code[17] and in prosecution guidance.[18] Witnesses in this investigation referred to a number of considerations in cases of child sexual abuse:
37.1. Failure to disclose earlier: Ordinarily, the Crown Prosecution Service will not refuse to charge solely because a complainant has not disclosed their abuse previously. Allegations of non-recent and institutional abuse are “common” and there are “good reasons” why such cases do not come to light at the time.[19]
37.2. Complainants’ previous convictions: Convictions must be disclosed to the defence and so may be used to allege that the complainant is dishonest or untruthful.[20] It is an “essential” part of the prosecution case to explain to the jury the circumstances behind any relevant offending by a complainant, which may be a reaction to abuse or because the complainant is under the influence of the abuser.[21]
37.3. The credibility of children: Until 1994, juries were generally warned by the judge of the risk of convicting a suspect in cases of alleged sexual abuse based on a single complainant’s evidence, as the “credibility and credit of the child will often be of limited value”.[22] However, since at least 2009, the evidence of a child has been regarded as no less reliable than that of an adult.[23]
37.4. Corroboration: Although prosecutors should consider whether there is any credible evidence suggesting a false allegation, “prosecutors should guard against looking for ‘corroboration’ of the victim’s account or using the lack of ‘corroboration’ as a reason not to proceed with a case.”[24]
37.5. Mental health, drug and alcohol issues: The Crown Prosecution Service now recognises, in its guidance, that some complainants may have particular mental health vulnerabilities.[25] Similarly, while drug or alcohol dependency may impact on a complainant’s ability to give evidence, the Crown Prosecution Service may still prosecute such a case.[26]
37.6. Previous sexual history: While it is not uncommon for records in historical cases to describe complainants as ‘promiscuous’, this should not now be a relevant factor in making a charging decision.[27]
37.7. Contemporaneous records: Prosecutors must ensure that complainants who have been in care are not disadvantaged by the fact that they will likely have a great deal of information recorded about them.[28] Records or the absence of records need to be treated with caution.[29] In non-recent abuse cases, records are often incomplete, though this should not be a bar to prosecution.[30]
37.8. Simultaneous civil claim: Complainants may bring a civil claim for the abuse at or around the same time that a criminal prosecution is being considered. Though the defence could question whether there is a financial motive for the disclosure, civil litigation should not impact on a charging decision unless there are substantial conflicts between the accounts given in the civil litigation and to the police.[31]
38. A decision not to prosecute (or to take no further action) does not mean that the abuse did not take place or that the Crown Prosecution Service has concluded that it did not happen. The question is whether or not the prosecutor could conclude that there was a realistic prospect of conviction, bearing in mind that the criminal standard of proof is high.[32] A second opinion may be obtained on decisions to take no further action or discontinue cases involving rape or serious sexual offences.[33]
39. After the Crown Prosecution Service decides (generally speaking) whether to authorise charges following allegations of child sexual abuse, it is the police who are responsible for informing complainants about the decision whether or not to prosecute.[34] A complainant is entitled to a review of that decision.[35]
40. It is possible for a decision to take no further action to be subsequently overturned, for example, if new evidence becomes available or if the original decision was “obviously wrong”.[36] This decision is made by a Chief Crown Prosecutor for the relevant area or, if made as a result of a challenge under the Victims’ Right to Review scheme, by a Deputy Chief Crown Prosecutor.[37] For example, the Crown Prosecution Service decided in 2006 to take no further action in relation to NO-A286’s allegations against Stephen Noy but, in 2014, this decision was overturned and charges authorised because there was additional evidence relating to the complainant’s mental health and another witness had come forward.[38]