A decision to bring a prosecution against a person, more than one person, or in some cases, a company, is usually made by a public agency responsible for prosecuting criminal cases that have been investigated by the police.

There are different prosecution agencies in different countries of the UK. The main ones are:

  • the Crown Prosecution Service, in England and Wales
  • the Procurator Fiscal, in Scotland
  • the Public Prosecution Service, in Northern Ireland.

The purpose of a criminal prosecution is to find out if someone has broken the law and appropriately sentence them.

The prosecution agency employs lawyers who use a two-part test to decide whether a person should be prosecuted:

  1. There must be sufficient evidence for a ‘realistic prospect of conviction’. This means that it is more likely than not that the person will be convicted. (This is different to the way a court decides whether to convict a person. A court should convict someone only if they are sure they are guilty.)
  2. It must be in the public interest to prosecute. If someone has been seriously injured due to a crime, a prosecution is usually in the public interest.

The prosecution agency will only make a decision to prosecute a case if both parts of the test are met. Following a review of the evidence, the prosecution agency selects the most appropriate charge or charges to reflect the seriousness and extent of any offending.

There may be rules about the time frames for starting a prosecution. The prosecution agency or your police contact can advise you.


Telling a prosecution agency what you think, and staying informed

The prosecution agency acts on behalf of the public interest, not on behalf of victims. However, when deciding if a prosecution is in the public interest, the prosecution agency should consider your views about how the crash has affected your life and the lives of others.

You can help a prosecution agency to hear your views and help them inform you about a criminal prosecution (whether it is happening, or charges are changed or dropped, and reasons why). You can:

  • contact the prosecution agency and ask them to keep you informed. You can do this directly or through your police contact, or solicitor
  • ask for a meeting with the prosecution agency, so that:
    • your views can be heard
    • you can find out more about a decision that has been made by a prosecution agency already.

Evidence relating to the case cannot be disclosed to you at a meeting with a prosecution agency.

Prosecution agencies’ decisions, and how they conduct themselves, including how they liaise with you, are guided by codes, available online.

You can access these codes at www.brake.org.uk/codes-and-standards


Criminal offences

There are many different criminal offences that someone can be charged with after a crash, depending on the evidence collected.

It may help to know that:

  • some offences mention that an injury or injuries have occurred, but others do not
  • sometimes it is only possible for someone to be charged with an offence that does not mention injury
  • sometimes a person, or more than one person, is charged with committing more than one offence
  • sometimes no one is charged with committing an offence
  • sometimes different people are charged by different prosecution agencies.

For a list of offences that someone can be charged with following a road injury, and the maximum penalties for each offence, go to www.brake.org.uk/offences

Maximum penalties are fixed by law and are different for different offences, sometimes significantly. Courts often impose penalties lower than the maximum. Sometimes new offences are created or there are changes to the definition of offences or the maximum penalty for an offence.

If you need more information about why someone has, or has not, been charged with a particular offence, you can ask the prosecution agency for a meeting, or ask your solicitor, or the National Road Victim Service, for help.


Charging someone and the possibility of bail

Someone charged with an offence is called 'the accused'. They may be arrested and then charged at a police station. Alternatively, they may be issued with a summons describing the charge and giving a court date.

An accused person may be remanded in custody (imprisoned) or given bail (allowed to remain free before their case is heard). The accused will be granted bail unless the court has reason to believe they would:

  • not attend a court appearance
  • commit an offence while on bail
  • interfere with witnesses
  • obstruct the course of justice.

An accused person remanded in custody may apply for bail at different stages, even if refused earlier. They may appeal against a decision not to grant bail. If bail is refused on appeal, the accused can ask for the decision to be reviewed, but only if there is good reason. If bail is granted, the prosecution can only appeal against the decision in rare circumstances.

People on bail are required to turn up, when required, to court hearings. Other conditions may include limiting where the accused person can live, or preventing them coming near you, someone else, or where you live. A person on bail can also be electronically tagged.


Decisions about whether an accused person can drive

A court may require an accused person to refrain from driving as a condition of bail, but only if it considers that it is necessary to prevent them from committing further offences.

Otherwise, an accused person who is on bail and possesses a driving licence will be allowed to continue driving while awaiting trial. If convicted of a crime, they may or may not be disqualified from driving.

If the accused is granted bail and their behaviour causes concern, for example you see them driving in a way you consider dangerous, or if they threaten you, report it to your police contact.


Changes to charges

Sometimes, if the accused is charged with a serious offence, the lawyers representing the accused ask the prosecution agency for the charge to be changed to a less serious offence, on the basis of evidence. This request can happen before a case goes to trial.

The prosecution agency may decide to continue charging the accused with the serious offence or may decide to charge the accused with a less serious offence. Their decision is based on the evidence and what is in the public interest. It may include factors such as the availability of witnesses.


Victim ‘right to review’

If a decision is made not to bring charges against someone, you may have the right to request a review of the decision under a ‘right to review’ scheme. Talk to your police contact and the prosecution agency.


Bringing a private prosecution or a judicial review

It is sometimes possible for a member of the public, rather than a public prosecution agency, to bring a private prosecution of another person for a criminal offence. However, this process is very expensive and legal aid is not provided.

Members of the public can also use a process called judicial review to challenge the way a prosecution agency has made a decision about prosecution.

This process is also expensive.