IOPC referral to the CPS: the new test

Key points

• The first condition for notifying the DPP is now a realistic prospect of conviction. Before, it was enough that a criminal offence may have been committed.
• The decision maker may treat a matter as not appropriate for the DPP where it is not in the public interest. They must have regard to the Code for Crown Prosecutors so far as they consider it relevant.
• Matters complained about, or known to the force or the IOPC, before 29 October 2026 keep the old test.
• The DPP, not the IOPC or the force, decides whether to prosecute.

General information for officers, not legal advice. Check the current law and your force policy. This page covers police forces in England and Wales. Points marked Untested have not been decided by a court and are not settled in published guidance; before relying on one, ask your supervisor, force legal services or the CPS.

When does it apply?

s.198 came into force on 29 October 2026 (SI 2026/960). Subsection (4) sets which cases it covers:

The amendments made by this section do not apply in respect of an investigation relating to a matter (or a report on, or a review relating to, such an investigation) if, before the day on which this section comes into force: (a) a complaint was made in respect of the matter, or (b) the matter came to the attention of the appropriate authority or the Director General.Crime and Policing Act 2026, s.198(4), punctuation adjusted

• For a saved case, paragraphs 23, 24 and 25 of Schedule 3 apply as they stood before 29 October 2026, to the investigation, its report and any review of it. So the new public interest and Code provisions, (2C), (2D), (4FA) and (4FB), do not apply either.
• The saving covers only what happened before the day the section came into force. Read that way, a matter that first came to attention on 29 October 2026 itself is not saved.
• Two tests will be in use at the same time for a while. If you are not sure which applies to a matter, your representative can ask the body running the investigation.

Untested These readings follow the Act’s wording, but no court has ruled on them:

• A matter the force knew of before 29 October 2026, but referred to the IOPC later, appears to keep the old test, even if the IOPC then directs or carries out the investigation. Limb (b) covers the appropriate authority or the Director General.
• If one complaint about a matter was made before 29 October 2026, a later complaint about the same matter does not appear to bring in the new test.
• A complaint made before 29 October 2026 but recorded on or after that date appears to keep the old test, because the Act says “made”, not “recorded”.
• A re-investigation of a saved matter appears to stay under the old wording. (A paragraph 25 review relating to a saved investigation is expressly covered by s.198(4).)
• Where one investigation covers several matters, some known before 29 October 2026 and some after, the Act does not say how the rule works.
• The Act does not say how the date a matter “came to the attention” of the force or the IOPC is to be recorded.

How the process works

1. A matter arises. A complaint or conduct matter (paragraph 22(1)) is investigated by the force on its own behalf, by the force under the IOPC’s direction, or by the IOPC itself (section 29(6)).
2. The investigation ends. A report is submitted or completed under paragraph 22.
3. The conditions are applied. On receipt of the report (or, where the Director General completed it, on completion), the Director General (paragraph 23(2)) or the appropriate authority (paragraph 24(2)) decides whether both conditions are met.
4. The DPP is notified, if both are met. The DPP is sent a copy of the report. Either way, the decision is notified to the complainant and anyone entitled to be kept properly informed (under section 21) and, where the Director General decides, to the appropriate authority (paragraphs 23(2)(d) and 24(2)(c)).
5. The DPP decides. The DPP decides whether to take action and tells the Director General or the appropriate authority (paragraphs 23(3) and 24(3)).

What does the IOPC do?

GOV.UK says the Independent Office for Police Conduct (IOPC) “exists to increase public confidence in the police complaints system in England and Wales. It also investigates serious complaints and allegations of misconduct against the police and handles appeals.”

Not every investigation is run by the IOPC. Where the force investigates on its own behalf, the appropriate authority makes the referral decision (paragraph 24).

What has changed?

s.198 makes these changes to Schedule 3 to the Police Reform Act 2002.

• Paragraphs 23 (Director General) and 24 (appropriate authority). The first condition, (2A), is replaced, and new (2C) on the public interest and (2D) on the Code are added.
• Paragraph 25(4F) (reviews). The review body now applies the same “sufficient evidence to provide a realistic prospect of conviction” wording, with new sub-paragraphs (4FA) and (4FB) to match (2C) and (2D).

The Government’s policing integrity factsheet says the change is made “so that it aligns with the test the CPS uses for subsequent charging decisions”, and describes the threshold as one for “the IOPC (and police force Professional Standards departments)”. It also says the change “may reduce overall referrals from the IOPC to the CPS”. No published figures on referrals under the new test were found when this page was checked.

What are the old and new tests?

Paragraphs 23(2A) and 24(2A) now read:

The first condition is that the report indicates that there is sufficient evidence to provide a realistic prospect of conviction for a criminal offence against a person (if any) to whose conduct the investigation related.Police Reform Act 2002, Schedule 3, paragraphs 23(2A) and 24(2A), as substituted by s.198 Crime and Policing Act 2026

Before the change, (2A) read: “The first condition is that the report indicates that a criminal offence may have been committed by a person (if any) to whose conduct the investigation related.” The second condition, (2B), was not changed.

What is a realistic prospect of conviction?

The Act does not define the phrase. The same words are used in the evidential stage of the Full Code Test in the Code for Crown Prosecutors (8th edition, October 2018), the test prosecutors apply. Paragraph 4.7 says:

It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.Code for Crown Prosecutors, para 4.7

The Code adds that this “is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.”

Untested No court decision on the new wording in Schedule 3 was found when this page was checked, and no IOPC guidance on how it will be applied. The factsheet describes the CPS charging test in other words (“reasonable grounds to believe the person has committed a criminal offence”); the Act itself uses the Full Code Test wording.

Where does the public interest come in?

Through the second condition. Under (2B)(a) the decision maker must be of the opinion that it is appropriate for the DPP to consider the matters in the report. New (2C) says the circumstances where they may form the opinion that it is not appropriate “include circumstances where, in the opinion of the Director General, it is not in the public interest for the matters dealt with in the report to be considered by the Director of Public Prosecutions”. Paragraph 24 says the same for the appropriate authority.

This works only on the opinion limb, (2B)(a). If the matters fall within a prescribed category under (2B)(b), the second condition is met whatever view is taken of the public interest.

So public interest is a reason the decision maker may give for not referring. It is not a further hurdle on the evidence. On the ordinary meaning of “include”, it is also not necessarily the only reason a matter may be found not appropriate for the DPP.

The Act does not list public interest factors. The Code’s public interest questions (paragraph 4.14) include: “The more serious the offence, the more likely it is that a prosecution is required” and “The greater the suspect’s level of culpability, the more likely it is that a prosecution is required.”

The questions are different, though. The Code asks whether a prosecution is required in the public interest. (2C) asks whether the DPP should consider the matter at all. Neither the IOPC nor the appropriate authority decides whether to prosecute.

What does it mean for officers under investigation?

This describes the process only, not any live matter. Anyone under investigation should take advice from their representative or a solicitor.

• For cases under the new test, the first condition is harder to meet than before. The factsheet speaks of “raising the threshold” and says the CPS “will still retain responsibility for the decision on whether to prosecute”.
• Misconduct is decided separately. The decisions on whether there is a case to answer for misconduct or gross misconduct, and on unsatisfactory performance, are in paragraphs 23(5A) and 24(6), which s.198 does not amend.

Accelerated procedure in criminal conduct cases (s.197)

s.197 lets the decision maker decide, before an investigation is finished, that two conditions, worded like the new referral test, are met. The factsheet says the aim is “to reduce the length of time an officer is under investigation before criminal proceedings can be brought”, and that an investigation report “may be submitted to the CPS before the final report has been completed”.

Reviews and victims (paragraph 25 and s.199)

Paragraph 25 reviews apply where a complaint was investigated by the force on its own behalf and the complainant applies for a review of the outcome. The review body now applies the new wording in (4F), with (4FA) and (4FB). If it finds the conditions met, the Director General (as review body) must notify the DPP and send the report, and a local policing body (as review body) must recommend that the appropriate authority does so (paragraph 25(4G)).

s.199 is a separate change, in force since 29 June 2026 (SI 2026/689). The factsheet says it puts the IOPC’s Victims Right to Review on a statutory footing. It adds paragraph 23A:

• It applies only to the Director General’s decisions under paragraph 23, not to an appropriate authority under paragraph 24.
• It applies where the Director General proposes to decide that one or both conditions are not met, and the person under investigation was told during the investigation that it was being treated as concerning conduct for which they may be prosecuted for a criminal offence.
• The Director General must take such steps as they consider reasonable to give every relevant victim (or someone acting for them) the chance to ask, within a period the Director General considers gives them a reasonable opportunity, for the proposed decision to be reviewed. If asked in time, the Director General must review it before deciding.
• A “relevant victim” is someone the Director General treats as a victim of the alleged offence and considers it appropriate to give that chance (paragraph 23A(3)).
• Section 199 contains no saving rule of its own.

Questions people ask

What is the new test for referring an IOPC report to the CPS?

The report must indicate that there is sufficient evidence to provide a realistic prospect of conviction for a criminal offence against a person (if any) to whose conduct the investigation related. Before 29 October 2026 it was enough that the report indicated a criminal offence may have been committed. The second condition is unchanged.

Which test applies to my matter?

The old test applies if, before 29 October 2026, a complaint was made about the matter or the matter came to the attention of the appropriate authority or the Director General of the IOPC. Otherwise the new test applies, even if the conduct happened earlier (s.198(4)). If you are not sure, your representative can ask the body running the investigation.

What is a realistic prospect of conviction?

The Act does not define it. The Code for Crown Prosecutors uses the same words and says it means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.

Does the IOPC decide whether an officer is prosecuted?

No. The IOPC or the appropriate authority decides whether to notify the DPP. The DPP then decides whether to take action. The Government factsheet says the CPS will still retain responsibility for the decision on whether to prosecute.

Does this change misconduct proceedings?

Section 198 does not amend the separate decisions on whether a person has a case to answer for misconduct or gross misconduct, or whether their performance is unsatisfactory (paragraphs 23(5A) and 24(6) of Schedule 3). Section 197 does change paragraph 20: an accelerated determination under paragraph 20ZA now lifts its bar on criminal and disciplinary proceedings.

Does this mean fewer officers will be referred?

It is too early to say. The Government factsheet says the change may reduce overall referrals from the IOPC to the CPS. No published figures on referrals under the new test were found when this page was checked.

What is the difference between misconduct and criminal conduct?

The Police (Conduct) Regulations 2020 define misconduct as a breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action, and gross misconduct as a breach so serious as to justify dismissal. Conduct resulting in conviction for an indictable-only offence is treated as gross misconduct. Criminal conduct here means conduct that may amount to a criminal offence, and whether to prosecute is for the CPS. The two are decided separately.

Who is the appropriate authority?

Section 29 of the Police Reform Act 2002 defines it. For a person serving with the police who is not a chief officer, it is the chief officer under whose direction and control they are. For a chief officer or an acting chief officer, it is the local policing body for the force area.

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Last checked 2 November 2026 against legislation.gov.uk. General information for officers, not legal advice.