If the offer of an ‘out-of-court disposal’ is refused, if any conditions attached to it are not complied with or if the offence is serious, the police can either make a decision to prosecute the person responsible themselves or refer the case to the Crown Prosecution Service to do so. In mediaeval times, it was the person aggrieved who would prosecute, but these days, the state steps in to defuse feuds and to ensure justice, recognising that the individual does not have the resources to investigate and prosecute a crime that is committed against them.

The role of the criminal courts is, first, to determine guilt or innocence for this particular breach of the law and then to impose a penalty. The government defines the purpose of the courts on their official website as follows: ‘to deliver justice for all, by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent’. The courts are the forum provided by the state where a fair trial may be held, guilt or innocence established, and punishment imposed on the guilty.

The primary concern for the Crown Prosecution Service under their code is to prosecute when it is in the public interest, and when there is greater than a 50% chance of a conviction. The Crown Prosecution Service acts for the state, not for the person harmed (as in Regina vs Smith, where Regina is the Crown rather than the aggrieved). Sometimes, when the ‘victim’ makes it clear that they will not assist in a prosecution, the Crown Prosecution Service will drop the case, although the decision not to prosecute is much more likely to be due to lack of evidence. A prosecution will still go ahead even in circumstances where it is clear that more harm than good will be done to the person harmed. An example would be a situation involving ‘historic’ sexual abuse, where living through the attempts by the defence to undermine their evidence in order to get their client off the charge may in some cases be as bad or perhaps worse for the person harmed than the abuse itself. Moreover if the defendant, having been found guilty decides to appeal, this can result in the case being tried more than once, which can add further re-victimisation by the criminal justice system.