It has never been a rule of our criminal justice system that suspected criminal offences must automatically be subject of prosecution. If the evidence against a suspect is insufficient to justify his conviction, or even to call upon him for an explanation, then it cannot be in the public interest to put him on trial.
Prosecutorial discretion demands that a two-fold test be satisfied before a decision can be taken on the case file: (i) sufficiency of evidence, and (ii) public interest.
(i) Sufficiency of evidence
Once a law officer receives a case file, he will have to consider whether there is enough admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by an identifiable person. In other words, there must be enough evidence to provide a reasonable prospect of securing a conviction. If there is no reasonable prospect of conviction, the case must not go ahead, no matter how serious or sensitive it may be. If there is a reasonable prospect of conviction, the prosecutor will then address the issue of ‘public interest’.
(ii) Public Interest
If the evidence is sufficient to justify prosecution, the law officer will then need to assess whether there are public interest factors tending against prosecution which outweigh those tending in favour.
The public interest factors that can affect the decision to prosecute vary from case to case. The more serious the offence or the offender’s record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest. On the other hand, a prosecution is less likely to be required if, for example, a court would be likely to impose a nominal penalty or the loss or harm connected with the offence was minor and the result of a single incident. Addressing the public interest issue in fact, involves a balancing exercise to be carried out. Examples of public interest factors would include the prevalence of the alleged offence, the need for deterrence, the use of weapons in assault cases, offences carried out on children, offences committed by a group, the fact that a potential accused may have already been the subject of disciplinary proceedings at work.
The office of the DPP is composed of law officers who are provided with a Guideline on Prosecution together with a Schedule of Duties. In very complex and high profile cases, the file will be dealt with by the scheduled law officer as well as his Supervising Officer. Opinions of other senior officers as well as ultimately that of the DPP himself are also sought before advice on prosecution is tendered in such high profile cases.
Ultimately, the court will provide a check on whether the decision was the right one, inasmuch as the charge will be dismissed if the evidence is insufficient. On the other hand, should the DPP decide to refuse consent to a prosecution, there is always a possibility of remedial action by way of judicial review, as enunciated by the Judicial Committee of the Privy Council in Jeewan Mohit v DPP  UKPC 20.
Prosecutors need therefore to strike a balance that takes into account the concerns of the State to protect its citizens and the right of a suspect to safe justice. They should never allow themselves to be swayed by the media or other pressure groups. Should anyone consider that all police cases must be prosecuted and in addition prosecution must win all of its cases, he may consider moving to North Korea.
S. Boolell, SC
Director of Public Prosecutions
(Reproduced from Newsletter of Office of Director of Public Prosecutions – August 2016)