This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Learn how charging decisions are made in the criminal justice system of England and Wales. This guide explains who makes charging decisions, the legal tests involved (evidential and public interest), how evidence is assessed, and what outcomes are possible. Clear, authoritative and accessible for solicitors and the general public.
Charging decisions are a central stage in the criminal justice process. They determine whether someone suspected of a criminal offence will be formally accused (charged), given an out‑of‑court disposal, or no further action will be taken. These decisions must balance evidence, fairness, and public interest, while complying with legal standards and statutory guidance. This guide explains how charging decisions are made, who makes them, and the legal tests and practical steps involved.
What a Charging Decision Is
A charging decision is the formal choice to prosecute a suspect for a specific criminal offence. Charging starts the formal prosecution process and leads to a defendant being brought before a criminal court (usually a magistrates' court). It must be based on sufficient evidence and be in the public interest. Charging can also be dispensed with if an out‑of‑court disposal (such as a caution) is appropriate and lawful.
Who Makes Charging Decisions
Role of the Police
In England and Wales, the police investigate alleged crimes and usually decide whether to charge suspects in less serious cases. For example:
- Summary offences (less serious offences usually heard in a magistrates' court)
- Some “either way” offences where a guilty plea is anticipated and the case can be dealt with in a magistrates' court without CPS involvement
The police may charge suspects directly in these cases if they are satisfied that the legal criteria for prosecution are met. However, where a case falls within categories requiring CPS authority, the police must refer the matter to a prosecutor for a charging decision.
Role of the Crown Prosecution Service (CPS)
The Crown Prosecution Service (CPS) is an independent prosecuting authority responsible for most charging decisions involving serious offences. The CPS makes charging decisions in:
- All indictable‑only offences (e.g., serious violent and sexual offences)
- Many triable either way offences without a clear anticipated guilty plea
- Cases flagged as domestic abuse, hate crime, or other sensitive case types
- Cases requiring authorisation because of statutory or policy requirements
Prosecutors review evidence prepared by investigators and apply statutory tests before authorising a charge.
The Legal Framework for Charging
Charging decisions must comply with legal rules set out in:
- The Police and Criminal Evidence Act 1984 (PACE)
- The Magistrates' Courts Act 1980 (which contains time limits for certain charges)
- The Code for Crown Prosecutors
- The Director's Guidance on Charging (DG6), which sets out detailed arrangements and procedural steps for charging decisions by prosecutors and police
The Code for Crown Prosecutors
The Code for Crown Prosecutors is a legal standard that guides every charging decision. It outlines two key stages:
- Evidential Stage – Is there sufficient evidence to provide a realistic prospect of conviction?
- Public Interest Stage – Is it in the public interest to prosecute?
A charge will only be authorised if both stages are satisfied.
The Charging Tests
Full Code Test
The Full Code Test is the principal test used by prosecutors. It consists of:
- Evidential Stage: Prosecutors must be satisfied that the available evidence is likely to result in a conviction if the case is properly presented at trial. This requires that an objective magistrates' court or jury would more likely than not convict based on the evidence.
- Public Interest Stage: Prosecutors must consider whether a prosecution is proportionate and serves the public interest. Relevant factors include the seriousness of the offence, harm to the victim, wider community impact, and any mitigating circumstances (such as the suspect's age or health).
Threshold Test
Where immediate charging is necessary (for example, where a suspect is in custody and there is insufficient evidence yet to apply the Full Code Test), the Threshold Test may be used. This applies in limited circumstances and requires:
- Reasonable grounds to suspect the suspect committed the offence
- Further evidence is likely to be obtained within a reasonable time
- Custody is necessary due to risk (e.g., to prevent harm or interference)
The Threshold Test allows a prosecutor to authorise charge when a full evidential assessment will follow. Cases charged under this test still require a full evidential review at a later stage.
How Evidence Is Assessed
Investigators must submit a charging request with evidence arranged according to the National File Standard (NFS). This includes:
- Witness statements
- Forensic and medical reports
- Risk assessments (e.g., domestic abuse)
- Records of previous convictions
- Victim personal statements
- Potentially disclosable material that may assist the defence or undermine the prosecution
Prosecutors examine all material, including unused material, to assess whether it affects the evidential or public interest stages.
Decision Outcomes
When a charging decision is made, several outcomes are possible:
- Authorise Charge: The suspect is charged with specified offences and the case moves to the court system.
- No Further Action (NFA): The prosecutor decides not to prosecute because the case fails one or both stages of the legal test.
- Out‑of‑Court Disposal: Where appropriate and lawful, the suspect may be given a caution or other resolution rather than prosecution.
- Action Plan: The prosecutor may require further evidence or investigative actions before a final decision can be made.
Time Limits and Practical Issues
There are statutory time limits on charging summary‑only offences. For example, a summary‑only charge must be laid within six months of the offence unless a specific exception applies.
For more serious offences, there is no fixed maximum period between arrest and charge once a suspect is released under investigation, but the police and CPS aim to follow agreed timelines to ensure fairness and efficiency.
Rights and Review of Decisions
If a prosecutor decides not to charge, victims may have the right to request a victim right to review (VRR), where a different prosecutor re‑evaluates the decision. The outcome must be communicated to the victim with an explanation of the reasoning.
Key Takeaways
Understanding how charging decisions are made in England and Wales requires knowing the distinct roles of the police and the CPS, the legal tests applied, and the procedures that govern how evidence is assessed. Charging decisions hinge on whether there is sufficient evidence and whether prosecution serves the public interest. Complex and serious cases fall to the CPS, guided by the Code for Crown Prosecutors and the Director's Guidance on Charging, while less serious cases may be charged by the police. Decisions must be clear, justified, and compliant with statutory and policy requirements, ensuring fairness for suspects and confidence in the criminal justice system.
