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Many questions on this site ask a question of the form:

  • assuming X committed offence Y, why did the prosecution not charge X with offence Y?

E.g. (paraphrasing):

So: why might the prosecution not charge?


Certainly, if you want to know whether the facts as you understand them make out offence Y in the relevant jurisdiction, that is a different question. Or if you want to know whether offence Y has a limitation period or some other barrier that would prevent charging it, that likewise is a different question. But if you're asking: "looks like X committed Y, and Y was available to be charged, so why wasn't X charged with Y?" - that's what this question covers.

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It might seem circular to answer "why didn't the prosecutor lay charge Y" by referencing prosecutorial discretion.

However, absent the very rare public explanation for a decision to not prosecute, we generally get zero insight into why prosecutorial discretion was exercised a certain way in a particular instance. Instead, we are left with the myriad factors that are always informing a prosecutor's decision. To go further is just a guessing game, which would render any such question too opinion-based.

In many jurisdictions, charging decisions are guided by policy documents. But there are many standard policy and strategic factors that go into charging decisions. At the highest level, these include consideration of the likelihood of conviction and an assessment of the public interest in a prosecution. A good answer by ohwilleke provides many typical circumstances where prosecutors routinely decline to charge.

I would also add the prosecution has a much better sense of their case than we ever do. What looks provable from the outside may have unseen vulnerabilities that are known only to the prosecution team.

Prosecutors may also choose to prosecute a subset of the offences committed by a person in order to keep a trial efficient and simple. This saves time and can avoid unnecessarily complicating things for the jury. Prosecutors will often select a lead charge that subsumes the general sense of "wrongness" that occurred. E.g. where burglary is charged, it is common to leave out attempted theft or theft.

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  • Going to prison sucks so much that it makes little difference if one is going to rot in there for 20 or 30 years, so to speak (parole/progression notwithstanding). Another funny example of one crime being necessary for the consequent is that it is heinously difficult to commit battery without assault. Commented Jun 17 at 13:29
  • A good answer. Could be even better to address some of the reasons other than prosecutorial discretion -- maybe the charges are time-barred or maybe there's been a deferred prosecution agreement, or maybe the defendant has flipped, etc.
    – bdb484
    Commented Jun 17 at 20:50
  • I think sometimes cases are not prosecuted because, if something goes wrong, you may not be able to try them again for that crime but all the crimes you haven't prosecuted are still viable. Also, there's just the simple fact that time and resources are limited. Just like anyone else, they have to make sure they are focused on the cases that have the best chance of forwarding justice. That's the most non-cynical take, anyway.
    – JimmyJames
    Commented Jun 17 at 21:08
  • I expect that staff training may also figure into these decisions as well, the fact that a new staff member hasn't yet prosecuted a crime may proke such a charge where it might be appropriate to pace or extend their experience.
    – civitas
    Commented Jun 18 at 10:18
  • @Midwin, if I sneak up on someone from behind and punch them, totally unexpected do they are never in fear of being attacked, isn’t that battery without assault?
    – gnasher729
    Commented Jun 20 at 12:26

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