What Evidence Does the CPS Need to Charge Someone in the UK?
Working out what evidence the CPS needs to charge someone starts with a single test: the Crown Prosecution Service will only charge you once your case clears the Full Code Test, a two-stage assessment made up of an evidential test (is there a realistic prospect of conviction?) and a public interest test (should this case be prosecuted at all?). There's no fixed checklist of documents or witness statements that guarantees a charge. What matters is whether the overall evidence is strong enough to stand up in court, and whether prosecution is in the public interest.
If you're currently under investigation and waiting to hear whether charges will follow, understanding this test properly is the difference between panicking over every police update and knowing exactly what's being weighed up behind the scenes.
Stage 1: The Evidential Test, What "Realistic Prospect of Conviction" Actually Means
Before a CPS prosecutor even considers whether a case should be brought, they have to work out whether it can be. This is the evidential test, and it's a purely objective exercise. The prosecutor isn't asking themselves whether they personally believe you're guilty. They're asking whether an unbiased jury, properly directed on the law, would be more likely than not to convict based on the evidence available.
That threshold is called a realistic prospect of conviction, and it's higher than most people assume. It's not "could this evidence support a charge?" it's "is a conviction more likely than an acquittal."
To reach that view, the reviewing lawyer works through several questions:
- Can the evidence be used in court at all? Some material, evidence obtained unlawfully, for instance, or certain hearsay, may be ruled inadmissible before a jury ever sees it.
- Is the evidence reliable? This covers everything from the quality of CCTV footage to whether a witness's account has stayed consistent, or whether it's shifted each time they've been asked to repeat it.
- Is the evidence credible? Even admissible, reliable evidence can be undermined by a witness's background, motive, or how they're likely to perform under cross-examination.
- Is there anything else that weakens the case? This might include a co-defendant's account, forensic gaps, or a plausible innocent explanation that the prosecution can't rule out.
If, having gone through this, the evidence doesn't reach that bar, the case fails at the first hurdle. No charge follows, and it's sent back to investigators to see whether further evidence can close the gap. Only if the evidential test is passed does the CPS move on to stage two.
Stage 2: The Public Interest Test, The Factors That Get Weighed Up
Passing the evidential test doesn't mean a charge is automatic. Even where there's clearly enough evidence to convict, the CPS must separately decide whether prosecution is actually in the public interest. Not every case that could be prosecuted should be.
The considerations for a prosecutor at this stage are:
- Seriousness of the offence: The more serious the alleged crime, the greater the public interest in prosecution appears to be.
- Culpability: This is the level of responsibility of the suspect. This can include their role, intent and the planning involved.
- Harm to victim: The effect on the victim, physical and psychological and whether the victim was particularly vulnerable.
- Age and maturity of suspect: This is especially relevant where the suspect was a child or young person at the time of the alleged offence.
- Health or personal circumstances: This includes mental health which may affect culpability and fitness for prosecution.
- Impact on the wider community: Beyond the individual victim, whether there's a broader public safety element.
- Proportionality: Is prosecution a proportionate response in view of the likely outcome, cost and impact on all those involved and whether an out of court resolution would better serve justice.
These factors are considered together, not in isolation. A case can be serious enough that a single strong factor tips the balance, or borderline enough that several smaller factors combine to point the other way. Only once a case clears both the evidential test and the public interest test can police formally lay a charge.
The Threshold Test: Charging Before the Evidence Is Complete
There's one situation where the CPS doesn't wait for the full picture before authorising a charge. Where a suspect is in police custody, the investigation isn't finished, but releasing them would pose a real risk, the CPS can apply the Threshold Test instead of the Full Code Test.
This is reserved for cases where the seriousness or circumstances of the alleged offence mean it would be wrong to release the suspect on bail, yet not all the evidence needed to meet the Full Code Test has been gathered yet.
Five conditions all need to be met:
- There are reasonable grounds to suspect the person of the offence.
- Further evidence is obtainable which gives a realistic prospect of conviction.
- The gravity of the case or the facts demand an instant decision to charge.
- There are substantial grounds to object to bail.
- It's in the public interest to charge.
Charging under the Threshold Test isn't the end of the story. The CPS is legally required to keep reviewing the case as further evidence comes in, and the charge must be converted to meet the Full Code Test as soon as reasonably practicable. If that additional evidence never materialises, the case can still collapse, and the earlier charge doesn't guarantee anything about the eventual outcome.
Who Actually Decides: Police or CPS?
It's a common misconception that every charge in England and Wales goes through the CPS. In reality, the police retain the power to charge for a defined range of less serious matters without CPS involvement, including:
- Summary-only offences (those dealt with exclusively in the Magistrates' Court, carrying a maximum sentence of six months).
- Shoplifting or criminal damage where the value involved is under £5,000.
- Either-way offences where a guilty plea is anticipated and the case is expected to stay in the Magistrates' Court.
Anything more serious, or falling into a sensitive category, must go to the CPS for a CPS charging decision. This includes cases involving:
- A death.
- Terrorism or official secrets.
- Hate crime or domestic abuse.
- Grievous bodily harm, actual bodily harm, or wounding.
- Sexual offences involving a person under 18.
- Matters under the Licensing Act 2003.
If your case falls into one of these categories, it's a CPS lawyer, not the officer in charge of your case, who ultimately decides whether you're charged.
What Happens If the Test Isn't Met?
Not every investigation ends in a charge. If the CPS decides the evidence or public interest test hasn't been satisfied, one of two things generally follows.
The investigation continues: Where there's a realistic chance further evidence could close the gap, police carry on investigating. During this time, a suspect is usually either on pre-charge bail or released under investigation, rather than remaining in custody.
The investigation ends in CPS no further action: Where it's clear further work won't change the outcome, the case is closed with a decision of no further action, commonly shortened to NFA. If the case failed on public interest grounds specifically, it's unlikely to be reopened later, since a decision has already been made that pursuing it isn't proportionate.
The Other Side: A Victims' Right to Review
An NFA decision isn't always the final word. Under the Victims' Right to Review scheme, a victim who disagrees with a decision not to charge can ask for it to be looked at again. A different, more senior prosecutor who wasn't involved in the original decision reviews the file independently. If they take a different view, charges can still follow, which is why an NFA outcome, while a relief, isn't necessarily the end of the matter until the review window has passed.
How Pre-Charge Representations Influence the Decision
This is the stage where having a solicitor involved early can genuinely change the outcome, rather than simply managing the process. Prior to the decision to charge being taken, a suspect's solicitor can make written representations direct to the investigating officer or the CPS prior to charge, addressing the evidence and the public interest factors head on.
Done well, these representations might:
- Challenge the reliability or admissibility of specific evidence before it's even weighed up.
- Set out mitigating circumstances relevant to the public interest test.
- Provide context, alibi evidence, or an account that hasn't yet been put to investigators.
- Argue that an out-of-court disposal would better serve the public interest than a prosecution.
The right time to submit these is during the investigation, once your solicitor has had sight of enough disclosure to know what's actually being alleged, not after a charging decision has already been made. Once the CPS has decided to charge, representations can no longer stop that specific decision; they simply come too late to influence a choice that's already been taken. That's why early legal advice matters far more than most people realise at the point of arrest.
FAQs
What is the Full Code Test?
It's the standard two-stage test the CPS applies to decide whether to charge someone: first, whether there's enough evidence for a realistic prospect of conviction (the evidential test), and second, whether prosecution is in the public interest (the public interest test). Both stages must be passed for a charge to proceed under normal circumstances.
What does realistic prospect of conviction mean?
This means that the admissible, reliable, and credible evidence would be more likely to convict than acquit if it were presented to an objective properly directed jury. It is a higher threshold than simply having some evidence that points to guilt.
Can the CPS charge without full evidence?
Yes, in some situations. This is called the Threshold Test. This only applies where a suspect is in custody, releasing them poses a genuine risk, and there are reasonable grounds to believe further evidence will emerge to meet the Full Code Test. The charge must then be kept under continuous review.
Who decides whether to charge, police or CPS?
It depends on the offence. Police can charge independently for less serious, summary-only matters and some either-way offences with an anticipated guilty plea. More serious or sensitive cases, including anything involving death, sexual offences, domestic abuse, or GBH, must go to the CPS for the charging decision.
Can a solicitor stop the CPS charging me?
A solicitor can't guarantee an outcome, but well-timed pre-charge representations can genuinely influence whether a charge is authorised, by challenging the evidence or raising public interest arguments before the decision is made. This needs to happen during the investigation, not after charge.
What happens if the CPS decides not to charge?
The case is closed or No Further Action (NFA) is taken and any bail conditions are generally discharged. But the case is not always closed forever. Investigators may reopen it if new evidence comes to light, and a victim can request a review of the decision under the Victims' Right to Review scheme.
Concerned About a Potential Charging Decision?
If you're under investigation and waiting to find out whether the CPS will charge you, the period before that decision is made is the one point where a solicitor can still shape the outcome. Once representations are submitted after charge, that window has closed.
At Holborn Adams, our pre-charge solicitors work with clients from the earliest stage of an investigation, building the representations that give a case the best chance of ending in no further action rather than a courtroom. Get in touch today to discuss your situation in confidence.
