When is prosecution in the public interest?

Abstract Prosecutors in England and Wales may start or continue a prosecution only if to do so is in the public interest. No general account has previously been given, however, of what the public interest consists in. This paper aims to provide such an account, drawing on a study of all policies and guidance published by the Crown Prosecution Service (CPS). Its principal conclusion is that, in most cases, CPS guidance imposes on prosecutors an obligation to seek an appropriate penalty for those against whom there is sufficient evidence. In more serious cases, this obligation effectively renders prosecution mandatory. In less serious cases, it may be outweighed by countervailing factors, and out-of-court disposals may constitute an appropriate penalty. However, only a limited range of factors are clearly recognised as counting against prosecution. CPS guidance also lacks clear principles regarding when prosecutors may exceptionally pursue non-punitive aims.