Explanatory Notes assist readers of the Act. They do not form part of the Act.
Prosecution of Offences Act 2026
Explanatory Notes
Introduction
These Explanatory Notes have been prepared by the Attorney General’s Office to accompany the Prosecution of Offences Act 2026. They do not form part of the Act and do not have legal effect. They should be read with the Act itself.
References to commencement describe the operation of section 1 and Schedule 1 and do not themselves bring any provision into force.
Overview
The Act establishes the statutory office of Director of Public Prosecutions and the Crown Prosecution Service as the principal State prosecution body for functions lawfully assigned to it.
It provides for prosecutorial independence under Attorney General superintendence, the functions and authorisation of Crown Prosecutors, a Code for Crown Prosecutors, reconsideration and complaints arrangements, case submission, evidence and disclosure, protected information, records, cooperation, reporting, governance and public information.
The Act does not create substantive offences, police powers, court jurisdiction, rights of audience, a general prosecution-consent jurisdiction or a private-prosecution system. It does not establish or confer functions on the Serious Fraud Office or transfer prosecution functions allocated to England, Hampshire County Government or another competent authority.
Policy background
Public prosecution requires an institution able to make independent and consistent decisions on evidential sufficiency and the public interest, work with investigators and courts, protect victims and witnesses, comply with disclosure and maintain authoritative case records.
The Act separates investigation, prosecution and adjudication. Police and other competent investigators remain responsible for investigation and investigative powers; CPS is responsible for prosecution functions within its jurisdiction; and courts determine guilt, sentence and judicial remedies.
The Director is accountable for the lawful and effective operation of CPS while remaining independent in individual prosecution decisions. Attorney General superintendence provides strategic, constitutional and public accountability without political direction of individual cases.
Legal background
Administrative governance arrangements between the Law Officers and the Director cannot establish a statutory office or confer prosecution authority. The Act provides the necessary primary legal foundation and requires the framework agreement to operate within, rather than replace, that authority.
The Act must be read with applicable criminal procedure, evidence, disclosure, court, sentencing, police-powers, information-rights, data-protection and public-records legislation.
Functions assigned by another enactment to the Serious Fraud Office or another prosecutor remain with that authority. Any private-prosecution right, charging allocation or prosecution-consent requirement must arise from separate competent law.
Territorial extent and application
The Act extends to the United Hampshire State and applies only to prosecution functions within State competence or otherwise lawfully assigned to the Director or CPS.
It does not establish the office of Lord Advocate for England, resolve concurrent prosecution jurisdiction or transfer a Hampshire County Government, England or other external function to CPS.
Summary of the Act
Part 1 establishes the Director and CPS and sets the relationship between prosecutorial independence and Attorney General superintendence.
Part 2 sets out the Director’s prosecution functions, charging and review principles, Crown Prosecutor authorisations, relationships with other prosecutors, the Code, complaints and protection from improper influence.
Part 3 covers case submission, evidence, disclosure, consent, protected information, prosecution records and cooperation.
Part 4 covers information for superintendence, annual reporting, governance, finance and public information.
Part 5 contains regulation-making, territorial, savings and transitional provisions. Schedule 1 sets commencement conditions for live prosecution casework.
Commentary on provisions
Part 1 — Director of Public Prosecutions and Crown Prosecution Service
Section 1: Short title and commencement
Section 1 gives the short title. Institutional, governance and final provisions come into force on making. The operational provisions identified in subsection (3) require commencement regulations and may not be commenced unless the Attorney General is satisfied that the applicable Schedule 1 conditions have been met.
Section 2: Interpretation
Section 2 defines the principal terms, including the Director, CPS, Crown Prosecutor, prosecution function and State prosecution function.
Section 3: Director of Public Prosecutions
Section 3 establishes the office of Director, provides for appointment on merit through a fair and open process and sets bounded resignation and removal arrangements. It does not create a professional qualification or right of audience.
Section 4: Crown Prosecution Service
Section 4 establishes CPS as a non-ministerial department headed by the Director. It confirms that CPS is institutionally separate from AGO, Interior, police, the Ministry of Justice, courts and the Judiciary and does not acquire investigative or judicial powers merely by being established.
Section 5: Independence and superintendence
Section 5 protects independent individual prosecution decisions while permitting Attorney General superintendence of strategy, governance, effectiveness, capability, risk, public resources and constitutional accountability. A Law Officer may exercise an individual consent or public-interest function only where legislation expressly confers it.
Part 2 — Prosecution functions
Section 6: General functions of the Director
Section 6 assigns the Director responsibility for State prosecution functions lawfully conferred on the Director or CPS. It covers institution and conduct of proceedings, takeover of qualifying proceedings, case review, investigator advice, prosecution decisions, court presentation and connected statutory functions.
Section 7: Prosecution and charging decisions
Section 7 requires prosecution decisions to satisfy the applicable evidential and public-interest requirements in the Code and to remain under review. Charging responsibility arises only where separate law or rules assign it to CPS.
Section 8: Crown Prosecutors and authorisation
Section 8 permits the Director to authorise suitably competent personnel to exercise specified functions. Authorisations must state their scope and limits and cannot create professional status, court entitlement, consent jurisdiction or extra-territorial power.
Section 9: Other prosecutors and jurisdiction
Section 9 preserves functions assigned to the SFO or another prosecutor and requires a lawful basis and authoritative record for referral or transfer. It leaves private prosecutions, the Lord Advocate for England and concurrent-jurisdiction questions to separate law.
Section 10: Code for Crown Prosecutors
Section 10 requires the Director to issue and publish a Code stating the general principles applied to prosecution decisions, including evidential sufficiency, public interest, charge selection where applicable, review, fairness, independence and treatment of participants.
The Code is prosecutorial guidance within statutory authority. It cannot create an offence, consent requirement, court power or prosecution jurisdiction.
Section 11: Reconsideration and complaints
Section 11 requires accessible arrangements for complaints about CPS service or administration and reconsideration of categories of prosecution decision specified by the Director. It does not create a statutory appeal or displace a judicial remedy.
Section 12: Improper influence
Section 12 prohibits unauthorised direction of individual prosecution outcomes and requires conflicts and attempts at improper influence to be recorded and managed. It preserves legitimate legal submissions, scrutiny, inspection, audit and judicial oversight.
Part 3 — Casework, information and cooperation
Sections 13 and 14: Case submission, evidence and disclosure
Section 13 requires CPS and investigative bodies to maintain case-referral standards while confirming that an administrative protocol cannot create an investigative power. Section 14 requires arrangements for evidential assessment, disclosure, case review and continuity.
Section 15: Prosecution consent
Section 15 confirms that consent functions exist only where another enactment creates them. The enabling enactment determines the decision-maker, threshold and any delegation, and required consent must be obtained before the relevant proceedings.
Section 16: Protected information and privilege
Section 16 protects legally privileged, case-sensitive, personal, security-sensitive and otherwise restricted information. Technical access to a system or account does not itself confer lawful authority to obtain, use or disclose prosecution information.
Section 17: Prosecution records
Section 17 requires sufficient official records of referral, legal and evidential assessment, public interest, decisions, jurisdiction, consent, review, disclosure, court handling, complaints and transfers. Informal communications cannot substitute for a required official record.
Section 18: Cooperation
Section 18 permits lawful cooperation with criminal justice and other competent bodies while preserving investigative, prosecutorial and judicial independence, jurisdiction, privilege and information-law requirements.
Part 4 — Superintendence, governance and accountability
Section 19: Information for superintendence
Section 19 requires proportionate information flows to the Attorney General while allowing information to be withheld, limited, delayed or handled through a protected route where necessary to protect proceedings, investigations, privilege, courts, security, personal information or another lawful interest.
Section 20: Annual report
Section 20 requires an annual report on CPS performance, quality, outcomes, workforce, victims and witnesses, governance, risk, public resources, complaints and improvement. Protected case material is excluded from publication.
Section 21: Framework agreement
Section 21 requires the Attorney General and Director to maintain a framework agreement for governance and superintendence. The agreement remains administrative and cannot create prosecution powers, consent functions, appointments, offences or court jurisdiction.
Section 22: Finance and corporate administration
Section 22 places CPS within applicable public-finance, Civil Service, procurement, security, records and governance arrangements. The Act does not itself designate an Accounting Officer, create a budget or confer spending authority.
Section 23: Publication and public guidance
Section 23 requires public information sufficient to explain CPS functions, independence, prosecution principles, complaints, review and accountability and requires a clear distinction between investigation, prosecution, adjudication and the roles of other institutions.
Part 5 — Final provisions
Sections 24 to 26: Regulations, extent and savings
Section 24 governs statutory instruments and limits delegated legislation. Section 25 confines the Act to State prosecution competence. Section 26 preserves other statutory assignments and prevents retrospective validation of activity that lacked lawful authority.
Section 27: Transitional status
Section 27 records the transitional legal basis of the Act and requires confirmation, amendment, replacement or repeal by the Parliament returned after the 2027 general election if the legislation is to continue beyond the transition.
Schedule 1 — Commencement conditions
Schedule 1 requires the Attorney General to consider the Director’s appointment, CPS staffing and competence, the Code, criminal-procedure integration, case-referral arrangements, records and security, complaints, governance, finance, training, public information, legal-authority records and a formal commencement decision.
The Schedule does not itself commence any provision. Operational commencement requires regulations under section 1.
Commencement
The provisions identified in section 1(2) come into force on making. Sections 6 to 9 and sections 11 to 18 come into force only on the day or days appointed by the Attorney General by regulations.
Different days may be appointed for different provisions or purposes. The commencement power is constrained by section 1(5) and Schedule 1.
Related legislation and administrative arrangements
The Act is intended to operate alongside the Criminal Justice Act 2026, applicable criminal-procedure and disclosure legislation, court rules, police-powers legislation and the Crown Prosecution Service Inspectorate Act 2026 where those measures are lawfully in force.
The Code for Crown Prosecutors, CPS / Police Case Submission Protocol, Disclosure Manual, Casework Quality Standards, complaints and review schemes, records procedure, framework agreement and controlled casework forms support the Act but do not replace or enlarge its legal authority.