Evidential vs Public Interest: Using the Full Code Test
A charging decision depends on two things: evidence and public interest. The evidence must first meet the required threshold, while the wider circumstances must then be considered before a prosecution is authorised. Understanding the Full Code Test for pre-charge submissions can therefore help ensure the Crown Prosecution Service (CPS) receives a properly supported account of the evidence before a charging decision is made.
The Full Code Test is central to charging decisions in England and Wales. It has two stages: the evidential stage and the public interest stage. A case should not ordinarily proceed unless both stages are satisfied.
At Holborn Adams, we approach pre-charge work with the evidence in focus. We review available material, identify weaknesses and inconsistencies, consider reasonable lines of enquiry, and prepare focused representations where they can assist. The objective is to put relevant material before the decision-maker at the right stage.
Evidential Stage: Applying the Test
The evidential stage comes first. The CPS must consider whether there is sufficient evidence to provide a realistic prospect of conviction against every suspect on each charge.
This is not simply a question of whether some evidence supports an allegation. The assessment considers the quality, reliability, and admissibility of the material, together with the likely impact of the defence case.
Relevant questions might include: do the witness accounts line up? Is there any digital evidence to support or contradict an allegation? Is there a plausible alternative explanation for the available material?
Testing the Evidence
A defence team can examine the evidence from several angles.
Witness accounts may be inconsistent or change over time. Communications may provide context not available in an initial complaint. CCTV, location data, financial records, or other independent evidence may also affect the strength of the case.
Disclosure is particularly important. A pre-charge solicitor can look at the material available and find out if there are any gaps that may need to be filled before a charging decision is made.
Representations should focus on the evidence capable of affecting the charging decision rather than simply disputing an allegation in general terms.
Public Interest Arguments
Satisfying the evidential stage does not automatically mean that a prosecution must follow.
The second stage asks whether a prosecution is required in the public interest. The CPS looks at the facts of the alleged offence, the suspect, and the wider implications of a prosecution.
The public interest assessment is fact-specific. Factors can include the seriousness of the alleged offending, the circumstances in which it occurred, the impact on any victim, the suspect's culpability, and the likely consequences of prosecution.
A defence submission can address relevant public interest factors once the evidential stage has been considered.
That does not mean attempting to minimise a serious allegation or making unsupported personal claims. A properly prepared submission should identify relevant circumstances and explain why they matter to the charging decision.
Structuring Submissions for the CPS
A strong representation should make it simple for the decision-maker to understand the defence position.
The submission should identify the issues under consideration and then deal with the evidence systematically. Each significant point should be supported by material already available or by a clear explanation of why further enquiries are required.
A pre-charge representation may highlight:
- Material inconsistencies in witness accounts
- Evidence that contradicts or undermines an allegation
- Digital communications that provide relevant context
- Alternative explanations supported by independent material
- Evidential gaps requiring further investigation
- Concerns about admissibility or reliability
- Relevant public interest considerations
Keeping the Argument Focused
Length alone does not make a submission persuasive.
The strongest representations concentrate on issues capable of changing the charging decision. Unsupported assertions, unnecessary repetition, and attacks on the character of a complainant can distract from the legal and evidential issues that are truly relevant.
The defence should also distinguish between evidence that genuinely undermines a prosecution case and material that merely provides background.
A solicitor may need to make targeted requests for further investigation before representations are made. Digital evidence, third-party records, and witness material can sometimes alter the position substantially.
Timing and Triggers
Timing can make a significant difference to pre-charge strategy.
A representation submitted before the investigation has reached a suitable stage may be premature. Waiting until a charging decision is imminent can create the opposite problem if important evidence has not been identified or properly presented.
The appropriate timing depends on the investigation and the material available.
A voluntary interview, police bail, further investigative enquiries, or a request for a charging decision can all affect the appropriate approach.
The defence have to be aware of developments and decide whether they want to make representations or seek further evidence.
The strategy for a Full Code Test for pre-charge submissions should respond to the evidence rather than rely on a standard template. Each case requires its own analysis.
The CPS can request further information or continue an investigation until it makes a final decision. This time can be used by the defence to work out what key questions to ask and to fix weak points in the prosecution’s case.
Outcomes: NFA, Caution, or Charge
A pre-charge intervention can lead to several possible outcomes.
The police or CPS may decide that there is not enough evidence and take No Further Action (NFA ). Further investigation may also be needed before a final decision is taken.
In some circumstances, an out-of-court disposal may be considered. A caution is not appropriate in every case and involves specific legal and procedural considerations.
A prosecution may be authorised if the Full Code Test is satisfied.
The role of defence representations is not to guarantee a particular result. It is to ensure that the decision is made on an evidential basis and that relevant considerations are put before the appropriate decision-maker.
How Holborn Adams Works at Pre-Charge
- Evidence review: We examine available material and identify weaknesses, inconsistencies, and missing evidence.
- Interview strategy: We can advise on how to prepare for and approach police interviews under the Police and Criminal Evidence Act 1984 (PACE).
- Proactive enquiries: We consider any digital evidence, witness material, and other lines of enquiry that may assist.
- CPS representations: We prepare focused submissions addressing the evidential and, where appropriate, public interest stages of the Full Code Test.
- Ongoing advice: We keep in touch as the investigation develops and respond to significant changes in the case.
Practical Cautions
- Do not contact complainants or witnesses about the allegation
- Do not delete messages, photographs, devices, or other potentially relevant material
- Obtain advice from a pre-charge solicitor before attending a voluntary police interview
- Keep records of important communications with investigators
- Raise significant evidential developments with your solicitor promptly
What To Do Next?
Understanding the Full Code Test for pre-charge submissions can be important if an investigation is getting close to a charging decision. A focused defence submission can identify evidential weaknesses, explain relevant material, and address appropriate public interest considerations before the CPS reaches its decision.
Experienced pre-charge solicitors will be able to advise on police interviews, prepare a pre-charge representation where appropriate, and assess the evidence. Early advice can help ensure the position is properly assessed before a charging decision is made. If you have been contacted by police or believe a charging decision is approaching, specialist advice should be obtained promptly.
This article offers general legal information and should not be relied upon as legal advice. For confidential assistance, contact Holborn Adams to speak directly with a solicitor.
