LAWS6066 Chap.2 The Decision to Prosecute
The Decision to Prosecute
The prosecution decision uses two distinct gates. First, the prosecutor assesses whether admissible evidence provides a reasonable prospect of conviction, with attention to reliability, availability and likely defence issues. If that evidential gate is met, public-interest considerations determine whether proceedings should continue. The assessment is continuing rather than frozen at charge.
New evidence, a changed witness account or a corrected factual premise can require reconsideration, consultation and recorded reasons while prosecutorial independence remains intact.
What this chapter covers
- 01
Reasonable prospect of conviction
- 02
Admissible evidence
- 03
Public-interest factors
- 04
Improper considerations
- 05
Continuing review
- 06
Prosecutorial independence
Worked example · free
Apply the two prosecution gates
- +1Identify the admissible evidence and the elements it must prove.
- +1Assess the contradiction, explanations, corroboration and likely effect on reliability.
- +1Reach the evidential sufficiency gate without importing public-interest factors.
- +1If sufficiency is met, weigh the permitted public-interest considerations.
- +1Record the basis and identify developments that would trigger reconsideration.
Key terms
- Sufficiency gate
- The threshold assessment of whether available evidence reasonably supports conviction.
- Public interest
- The permitted considerations bearing on whether a sufficiently supported prosecution should proceed.
- Continuing review
- The obligation to reconsider continuation when material information or circumstances change.
- Independence
- The prosecutor's responsibility to decide without improper direction or personal interest.
The Decision to Prosecute FAQ
Does a serious allegation always proceed?
No. Seriousness may strongly support prosecution at the public-interest stage, but it cannot replace the evidential threshold. If the admissible evidence does not provide the required prospect of conviction, the matter does not pass the first gate.
When should a charging decision be reconsidered?
Reconsideration is appropriate when new evidence, changed witness availability, a material credibility development, a legal ruling or another significant fact alters the basis on which continuation was assessed. The prosecutor should apply the current information rather than defend the earlier choice.
Does consultation remove prosecutorial independence?
No. Consultation can improve information, identify impact and expose misunderstanding, but it does not transfer the charging power. The prosecutor must consider relevant views respectfully and then make an independent decision under the governing guidelines and law.
Should public pressure affect continuation?
Public confidence and seriousness can be relevant through lawful public-interest considerations, but political demand, publicity or fear of criticism cannot replace independent evaluation. The prosecutor should identify the legitimate factor actually engaged and exclude pressure that distorts the authorised function.
Assessment move
Create a two-column sheet headed evidence and public interest. Sort every factor from a problem into one column before drafting, and mark any improper consideration separately. For evidence, link each weakness to an element, admissibility issue or reliability mechanism. For public interest, explain direction and weight rather than counting factors.
Practise a second version of each problem in which one fact changes after charge, then state whether the development requires reconsideration and what information should be sought before a new decision is recorded. Expand the evidence column into an element chart.
For each element, list the evidence capable of proof, any admissibility uncertainty, the expected defence challenge and the realistic consequence if a witness is unavailable or inconsistent. Do not assign a percentage to conviction prospects. Instead, explain how the evidence would operate before a properly instructed tribunal and why the prospect remains reasonable or falls below the threshold.
Build a public-interest matrix with seriousness, victim circumstances, accused circumstances, alternatives, delay, resources and likely outcome. Add a final column titled lawful direction. That column forces you to say whether the factor favours continuation, discontinuance or has little weight on these facts.
It also makes double use visible, especially when seriousness is invoked both to excuse weak proof and to support prosecution after the evidential gate. Rehearse reconsideration as a dated file note. State the earlier basis, new information, inquiries made, consultation undertaken and new conclusion. Then test whether the note sounds like a fresh assessment or a defence of the original choice.
If the conclusion remains unchanged, identify exactly why the new fact does not alter sufficiency or public interest. Use short oral drills for improper considerations. Ask whether media pressure, political preference, personal hostility, institutional embarrassment or a desire to secure any conviction can lawfully control the outcome. Replace each improper motive with the legitimate question the prosecutor should ask.
Finally, compare prosecution independence with accountability. Write one paragraph showing why independence resists improper direction and a second showing why guidelines, consultation, recorded reasons and review remain necessary. The goal is to explain both ideas without turning independence into secrecy or accountability into external control of the charging power.
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