Making prosecution decisions

Prosecution Guidelines

Since 1992, the Solicitor-General has issued Prosecution Guidelines to assist prosecuting agencies in deciding whether to prosecute in any particular matter.  The guidelines also set out how certain issues in prosecutions should be dealt with. 

The guidelines cover the full range of offending, including all four categories of offence under the Criminal Procedure Act 2011, prosecuted by the full spectrum of public prosecuting agencies (not just the Police and Crown Solicitors), so they are necessarily high level in nature. 

The guidelines are issued by the Solicitor-General, in her capacity as an independent Law Officer, under section 185 of the Criminal Procedure Act 2011.  They are legal guidelines for prosecutors.  This helps to ensure that prosecution decisions are free from political influence, which is fundamental to our democracy.

It is essential that the guidelines are reviewed from time to time to ensure they remain fit for purpose.  It is important to see whether the guidelines can be improved to better support prosecution decision‑making.

Making prosecution decisions

Most Commonwealth countries, including New Zealand, adopt a similar approach to the decision to prosecute, by way of a two-step test that must be satisfied which addresses evidential sufficiency and the public interest. 

1.      The evidential sufficiency test must be considered first. Essentially, the prosecutor must assess whether there is sufficient evidence to prove the case beyond reasonable doubt. If there is not, then a prosecution cannot be commenced.

2.      If there is sufficient evidence, the prosecutor should then assess whether a prosecution is required in the public interest.  This will involve consideration of a range of factors specific to the particular case, including:

                                i.             the nature and seriousness of the offence;

                               ii.            the personal circumstances of the alleged offender (for example, their age and health, and other matters such as whether they have committed similar offending before);

                             iii.            the views of any victim(s) of the offence; and

                             iv.            whether there are any alternatives to prosecution.

A prosecution should only be commenced if both tests are met.  If there is not sufficient evidence, a prosecution should never be commenced no matter how great the public interest may be.  Conversely, even where there is incontrovertible evidence to prove the offence, a prosecution should not be brought unless the public interest requires it. The relative seriousness of the alleged offence will be an important factor in that consideration.

The Court always has the power to dismiss charges which lack evidential sufficiency or it considers to be an abuse of the Court’s process.

The guidelines promote equal justice before the law by assisting prosecutors to identify all the relevant factors that should be taken into account under both the evidential and public interest tests.  The law requires that the individual circumstances of a case are taken into account.  That means that two people who commit the same offence may be treated quite differently depending on their own personal circumstances.

For example, we do not treat children the same as adults; we do not treat those who suffer from severe mental illness the same as those who do not; and we take account of whether someone is a repeat offender compared to someone offending for the first time.

Alternatives to prosecution

In circumstances where there is a suitable alternative mechanism to meet the public interest in responding to crime, prosecution may not be appropriate or necessary.

Examples of alternatives to prosecutions include:

  • Warnings (whether formal or informal)
  • Restorative justice processes
  • Community-based justice processes such as the Police Te Pae Oranga programme (formerly known as Community Justice Panels or Iwi Justice Panels)
  • Civil enforcement action such as the payment of fines or forfeiture of money or property
  • Civil proceedings to recover the proceeds of crime
  • Infringement notices

Some agencies, including Police, also operate a diversion scheme in which a defendant is charged, but charges are subsequently withdrawn if the defendant takes certain steps (such as undertaking community service or donating money to a charity). This is not truly an alternative to prosecution because a prosecution must first be commenced.