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A CPS charging decision is not a verdict. Nobody at the Crown Prosecution Service decides whether you are guilty. A prosecutor applies a published, two-stage test to whatever material happens to be on the file on the day they look at it. That test is the Full Code Test, it lives in the Code for Crown Prosecutors, and anyone can read it.
Most people under investigation never do, and almost nobody is told the part that matters most to them: the Code expressly allows a suspect, through their legal team, to put evidence and information in front of the prosecutor before the decision is taken, and after it.
I am a solicitor advocate and a CPS-approved prosecutor. I have applied these tests from the prosecution side, and I now argue them from the defence side, in custody suites and in writing. This guide explains how the decision is really made, when police officers reach for the Threshold Test and why that should be resisted, and how pre-charge, proactive and post-charge representations work in practice.
Before looking at how the CPS decides, it helps to know whether it decides at all. Not every charging decision is a CPS charging decision. Under paragraph 3.1 of the Code, prosecutors decide whether a person should be charged with a criminal offence, and with what, in the more serious cases. The police charge in the cases for which they are responsible, applying the same principles. Which route a case takes, and therefore who the CPS determines should make the decision, is governed by the DPP's Guidance on Charging. Until then, the person is a suspect: someone under consideration for formal criminal proceedings, not a defendant.
In practice, lower-level matters such as most retail theft are charged by the police. More serious allegations, from contested actual bodily harm to violent disorder and sexual offences, go to a Crown Prosecution Service lawyer, either in the local area or through CPS Direct, the out-of-hours service that makes charging decisions while a suspect is still in custody.
The division of labour matters, because it tells you who to address. Investigators run the investigation: whether to start one, how far it goes and how resources are deployed (paragraph 3.2). Prosecutors advise on reasonable lines of inquiry, evidential requirements, disclosure and strategy. What prosecutors cannot do is direct the police (paragraph 3.3). What they can do, and must, is take account of a failure to pursue an advised line of inquiry when deciding whether the test can be met at all.
There is also a duty to act early. Paragraph 3.4 requires prosecutors to identify and, where possible, rectify evidential weaknesses, but, subject to the exception discussed below, to quickly stop cases which do not meet the evidential stage and cannot be strengthened by further investigation.
Paragraph 4.6 sets the requirement. The prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect, on each charge. They must consider what the defence case may be and how it is likely to affect the prospects of conviction. A case that does not pass this first stage must not proceed, "no matter how serious or sensitive it may be".
Paragraph 4.7 defines the standard, and it is the most misunderstood paragraph in the system:
The finding that there is a realistic prospect of conviction is based on the prosecutor's objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which they might rely. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.
Two things follow. A charge does not mean anyone has concluded you are guilty; it means someone assessed a conviction as more likely than not, on the material they had. A case can also properly be charged and properly end in acquittal without either decision being wrong, because the tests are different.
Notice too what the paragraph says the assessment includes: "any other information that the suspect has put forward". The defence case is part of the evidential stage. If nobody puts it forward, the prosecutor assesses the available evidence without it. More evidence is not always better evidence, but missing evidence is always a gap.
Paragraph 4.8 sets out the questions the prosecutor must ask about the available evidence:
That fourth question is where a properly prepared pre-charge case does its work. "Enough evidence" is not a fixed quantity discovered at the end of an investigation. It is a judgement about what has been gathered, and the material that answers an allegation is very often missing from the police file for the simplest of reasons: nobody looked for it.
Those four questions are asked of a file, so it is worth being concrete about what is in one. In most criminal cases it is some combination of witness statements, the account given in interview, CCTV, digital evidence from phones and devices, communications data, forensic evidence and, where injury is alleged, medical records.
Each carries its own weaknesses, and those weaknesses are exactly what the evidential stage exists to expose. Witness statements taken months apart drift. CCTV is overwritten on a cycle measured in weeks. Digital evidence is often vast and only partly examined, which is precisely why the Code asks about unexamined material. Forensic evidence can show contact without showing what kind of contact, and medical evidence often arrives late and says less than the allegation assumed.
A defence that waits for trial deals with this material only after it has been selected and served. A defence that engages at the early stages of an investigation can ask for what has not been examined yet, while it still exists. In allegations of sexual offences such as rape, where the case often turns on two accounts, the digital material is frequently where the answer lies.
The decision is not just whether to charge, but with what, and prosecutors must select appropriate charges. Section 6 of the Code says charges should reflect the seriousness of the offending, give the court adequate sentencing powers, allow a confiscation order where appropriate, and allow the case to be presented simply. Paragraph 6.3 is blunt: prosecutors should never charge more offences, or a more serious offence, just to encourage a guilty plea to something lesser. Where several related offences are alleged, the same principle applies to how many are charged. Overcharging is a point to take, not a tactic to accept.
Charge selection, venue and anticipated plea are decided together. Most cases start and finish in the magistrates' court; the Crown Court is reached for indictable-only offences or where an either-way offence is sent there. Under the Guidance on Charging, who makes the decision turns partly on whether a guilty plea to the offence anticipated is likely. All of that is settled before anyone has asked the suspect what their position is, unless their solicitor tells them.
Only where there is sufficient evidence does the prosecutor move to the public interest (paragraph 4.9). Paragraph 4.10 is explicit that it "has never been the rule that a prosecution will automatically take place once the evidential stage is met". A prosecution will usually follow unless the public interest factors against outweigh those in favour.
Paragraph 4.14 sets the seven questions every prosecutor must work through:
Paragraph 4.13 is worth holding on to: one factor alone may outweigh several pointing the other way. This is not an exercise in counting, which is why a well-argued public interest submission can succeed even where the evidence is there.
Where the full test is not yet met, a suspect can still be charged under this exception, but only "in limited circumstances" (paragraph 5.1). The seriousness or circumstances of the case must justify an immediate charging decision, and there must be substantial grounds to object to bail.
Paragraph 5.2 demands "a rigorous examination" of five conditions, "to ensure that it is only applied when necessary and that cases are not charged prematurely". All five must be met. If one fails, the others need not be considered and the suspect cannot be charged on this basis.
A charge on this basis is not the end of the matter. Under paragraph 5.11 the decision must be kept under review, the prosecutor must chase the outstanding evidence to an agreed timetable, and the Full Code Test must be applied as soon as that evidence arrives, and in Crown Court cases usually before the prosecution case is formally served.
Threshold charges are most often sought in allegations of violence, domestic abuse and sexual offences, the last of these by the RASSO team. Here is how it tends to happen. Someone is arrested on a serious allegation. The complainant is engaged, the officers are motivated, and there is a sense that the moment should not be lost. The thinking, sometimes said out loud, is that the iron is hot: charge now, remand him, and the witnesses will keep supporting the case while the rest of the evidence is gathered.
That is not what the test is for. It is an exception designed for genuinely dangerous suspects who cannot safely be released while identified evidence is obtained. It is not a way of locking in a case before its weaknesses surface. If officers need more evidence, the answer is to gather it, not to charge first, and the expectation that a witness will "keep playing ball" is not further evidence. It is a hope. The Code requires further evidence that is identifiable and not speculative, and a prosecutor who accepts a hope in place of evidence has not carried out the rigorous examination paragraph 5.2 demands.
So when officers tell me they are seeking a threshold charge and a remand, I do not wait for the decision. I put written representations to the investigating officer and the custody sergeant, to be sent with the file to the CPS lawyer, addressing each condition in turn: what the further evidence actually is, why it is not already available, whether the bail objections are a real risk assessment or an assertion, and what the defence account does to the reasonable grounds for suspicion.
From the custody suite (anonymised). A client was arrested on an allegation of grievous bodily harm and controlling and coercive behaviour within a relationship. Officers sought a threshold charge and a remand, relying on the complainant's first account and on further statements they expected to take. We put representations that the anticipated evidence was not identified, that the bail objections were unsupported assertions which conditions could meet, and that the client's prepared statement undermined the grounds for suspicion. The charge was not authorised, and he went home that night.
From the custody suite (anonymised). In a serious sexual offences investigation involving four complainants and nine allegations, senior officers in the RASSO team wanted to charge and remand while the complainants' accounts were fresh, describing the remaining enquiries as a formality. Within three formal interviews under caution, we identified material that pointed away from our client, which the Code requires to be weighed at the second condition, and argued that a charge resting on an untested account was precisely the premature charge paragraph 5.2 exists to prevent. The CPS declined to charge on a threshold basis and the investigation continued, with our client at liberty.
Neither outcome came from charm or luck. Both came from holding the prosecution to the words of its own Code, at the one moment when doing so changes what happens next. A remand is not a neutral holding position. It costs a person their job, their home and sometimes their family, and it can be months before the Full Code Test is applied properly.
Paragraph 3.6 provides that prosecutors review every case they receive and that "review is a continuing process". They must take account of any change in circumstances as the case develops, including what becomes known of the defence case, further reasonable lines of inquiry, and unused material that undermines the prosecution or assists the defence, "to the extent that charges should be altered or discontinued or the prosecution should not proceed". Paragraph 6.5 says the same about charge selection.
Criminal charges are not set in stone. That is the legal basis for post-charge representations. A charged case can be put back to the prosecution with a request for a review of the charging decision and, where the evidence does not support it, for the case to be stopped, by a notice of discontinuance under the Prosecution of Offences Act 1985 or by offering no evidence. Where continuing would be an abuse of the court's process, paragraph 3.5 says the prosecution should not continue at all.
Section 10 deals with reopening decisions the other way. People should be able to rely on CPS decisions, and normally a case that has been stopped will not restart (10.1). The exceptions in 10.2 are narrow: a review showing the original decision was wrong where a prosecution is needed to maintain public confidence in the criminal justice system; a case stopped so anticipated evidence could be collected; significant new evidence discovered later; and certain cases involving a death after an inquest. Victims may also seek a review of a decision not to prosecute under the Victims' Right to Review scheme (10.3).
Everything above describes a decision taken on material. The obvious question is who puts the material there. Paragraph 3.4 answers it directly:
Although prosecutors primarily consider the evidence and information supplied by the police and other investigators, the suspect or those acting on their behalf may also submit evidence or information to the prosecutor, before or after charge, to help inform the prosecutor's decision. In appropriate cases, the prosecutor may invite the suspect or their representative to do so.
That is the Code, not an argument about it. The process is commonly called pre-charge engagement, and it is recognised in the Attorney General's Guidelines on Disclosure, which set out how pre-charge engagement between the defence, investigators and prosecutors should work. We call our side of it pre-charge representation, because engagement describes a conversation and representation describes a case being put. Whatever it is called, three things follow.
Representations are part of the system, not an imposition on it. They are not a favour or a nuisance. The Code anticipates them, and in appropriate cases invites them. Pre-charge engagement happens in ordinary cases, not just complex cases, and its value is greatest at the early stages.
They are worth most before the decision. The evidential stage is applied to what is in front of the prosecutor. Material that arrives afterwards has to displace a decision already taken, which is harder than informing one that has not been made.
They must engage the test, or they do nothing. Useful representations are not character references or an account of what the case has cost the person. They address the questions the Code asks: admissibility, reliability, credibility, other material affecting sufficiency, and the seven public interest questions. Anything else is decoration.
We are known for proactive representations, and the word matters. Proactive means we do not wait to be invited, and we do not wait to see what the police do next. From the first disclosure, the defence team works out what the investigation has missed, and we put it in front of the people making the decision.
In practice, proactive representations can include identifying reasonable lines of inquiry that point away from the client, which investigators are obliged to pursue under paragraph 3.5 of the CPIA Code of Practice; supplying evidence the police do not have, such as messages, documents, witness accounts or independent expert evidence; and setting out precisely why the evidential stage cannot be met, or why the public interest points against prosecution.
The work starts with the interview, because what is said there becomes part of the material the test is applied to. Whether to answer questions, give a prepared statement or say nothing is decided with the disclosure in view, as we explain in no comment or a prepared statement. It continues through the investigation, where released under investigation or bail tells you very little about the outcome, as covered in released under investigation against conditional bail.
Where a charge has already been brought, we put the same analysis to the prosecution under the continuing duty of review, seeking a review of the charging decision and, where the evidence does not support it, discontinuance. That is post-charge representation: the same test applied to a fuller picture. Waiting to win at trial is not the only option, and it is rarely the cheapest or the least painful.
The alternative is the approach we wrote about in the advice that ends careers: waiting to see what the CPS decides, and reacting. By then, the test has been applied to a file you had no part in assembling.
A caution or other out-of-court disposal is not a softer finding reached by a different route. Under paragraph 4.10 it is one of the ways the public interest can be served once the evidential stage is already met. Where there is insufficient evidence, the correct outcome is no further action, not a disposal. We set out what accepting a caution costs in our guide to police cautions, and what an NFA does and does not erase in our guide to false allegations and NFA.
If you are under investigation, have been interviewed and are waiting for a decision, or have been charged and believe the case should not have been brought, the window described on this page is open now. Before charge, it closes when the decision is made. After charge, every week that passes makes the decision harder to unpick.
We deal directly with the police and the Crown Prosecution Service. Our experienced team acts nationally across England and Wales, privately, on pre-charge representations, Threshold Test challenges and post-charge reviews. The final decision on your case belongs to the prosecutor. What goes in front of them does not have to.
It is the decision by a Crown Prosecution Service prosecutor whether a suspect should be charged with a criminal offence and, if so, with what. It is taken under the Code for Crown Prosecutors, applying the Full Code Test or, in limited circumstances, the Threshold Test. Under paragraph 2.2 it is "not in any sense a finding of, or implication of, any guilt". Only a court can decide guilt.
The two-stage test a prosecutor must apply before starting or continuing a prosecution. The first stage is the evidential stage: is there enough evidence for a realistic prospect of conviction against each suspect on each charge? The second is the public interest stage. Both must be passed, and the evidential stage always comes first.
That an objective, impartial and reasonable jury, bench of magistrates or judge, properly directed, is more likely than not to convict. It is a lower bar than the criminal standard, because a court may only convict if it is sure.
It allows a charge before the Full Code Test is met, in limited circumstances: the case must justify an immediate decision, and there must be substantial grounds to object to bail. All five conditions must be met, including that the further evidence expected is identifiable and not speculative. It is meant for rare cases, and it can and should be challenged where those conditions are not met.
Yes. Paragraph 3.4 of the Code allows the suspect, or those acting for them, to submit evidence or information to the prosecutor before or after charge, and the prosecutor may invite it. Representations work best when they address the questions the test asks, with evidence, rather than offering general mitigation.
Representations made without waiting to be asked, at the earliest useful point. They identify gaps in the investigation, supply further information and evidence the police do not have, and explain why the evidential or public interest stage is not met. Done early, they can lead to no further action before a charging decision is ever taken.
Yes. Under paragraph 3.6, review is continuous, and charges should be altered or discontinued where the circumstances require it, including where unused material undermines the prosecution or the defence case becomes known. Post-charge representations ask the prosecutor to carry out that review now, rather than at trial.
There is no general time limit. Someone released under investigation can wait many months while the police look for more evidence. Summary-only offences must generally be charged within six months under section 127 of the Magistrates' Courts Act 1980, and custody time limits apply once someone is remanded. Otherwise the timetable is driven by the investigation, which is why it pays to gather evidence and put it forward early rather than wait.
No. The Code says the CPS assessment is not a finding of guilt. A charge means a prosecutor assessed a conviction as more likely than not on the material available at that point. A strong defence case put forward at the right time can change that assessment.
Lex Vindico Group is regulated by the Solicitors Regulation Authority. We represent individuals nationally across England and Wales in criminal, regulatory and parallel-proceedings defence at every stage of the criminal process, and most decisively at the pre-charge stage.
This article is written by Akram Mula, LLM, Solicitor Advocate and CPS-approved Prosecutor, founder of Lex Vindico Group. It is general information about the Code for Crown Prosecutors and the legal process around charging, not legal advice on any specific case. For advice on your specific circumstances, contact our team directly.
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