Written 2nd March 2023 by Toby Wilbraham
Background
Traditionally when someone is investigated for an allegation the police did all the pre-charge work. The police would receive a complaint from a person and investigate it. They could do the following as part of their investigation:- Take a statement from the complainant detailing the allegation,
- Interview the suspect (either voluntarily or having arrested them).
- Take statements from any relevant witnesses,
- Obtain any forensic evidence (DNA, fingerprints etc),
- Obtain CCTV footage,
- Obtain any digital downloads (phone / laptop analysis),
- Obtain any other relevant evidence.
The Attorney General’s Guidance on Disclosure 2020
In 2020 the disclosure guidelines were introduced in the UK. These were a game changer and set up a framework that allowed defence solicitors to contact the police with a view to pre-charge engagement (PCE). No such framework had existed before. This allowed the opportunity for defence solicitors to have more of an input at an early stage, an input that could impact the charging decision. Some guidance to how an officer should approach an investigation were set out as follows:- Investigators should approach the investigation with a view to establishing what actually happened. They are to be fair and objective.
- Investigators should ensure that all reasonable lines of inquiry are investigated, whether they point towards or away from the suspect.
Pre-Charge Engagement Under the Guidelines
The guidelines set out what pre-charge engagement could be as follows:- Pre-charge engagement may, among other things, involve:
- Giving the suspect the opportunity to comment on any proposed further lines of inquiry.
- Ascertaining whether the suspect can identify any other lines of inquiry.
Funding Pre-Charge work
Legal Aid
After the Guidelines were brought out the Government allowed (from 7th June 2021) limited legal aid funding for the work. On their website they state “The fees remunerate solicitors who act on behalf of suspects engaged in this process, these will be remunerated on an hourly rates basis with an upper costs limit of £273.75.” The problem with the funding provided is that investigations can take over a year and the upper limit of £273.75 is, in my opinion at least, wholly insufficient to undertake this work, even on a basic level.Private Paying Work
Pre-charge work can be undertaken on a private paying basis. Fees can be set according to the type of work that needs to be done. Sometimes more work needs to be done on a case than other types of work. Work types we deal with includes the following:Cases where the suspect accepts he is guilty of the allegation
Where a client accepts that they are guilty of an allegation and there is sufficient evidence to prosecute, pre-charge work can be beneficial to them.- Cases where we argue for a diversion from Court
- Cases where court proceedings are inevitable
Cases where the suspect denies he is guilty of the allegation
Where a suspect is investigated for an allegation that they deny they can really use the provisions of the PCE framework to their advantage. Through their solicitors the suspect can liaise with the police and suggest reasonable lines of enquiries to them. They can provide details of witnesses who could help, CCTV that could assist and anything else that could be of use. As the police are obliged to investigate all avenues, including avenues that point away from the suspect this can be hugely beneficial to them. Once the investigation is complete then Pre-Charge Representations (PCR) can be made to the police or the CPS lawyer deciding whether to charge or not. This would be given to them alongside the police file and would help them to look at the case objectively in a more balanced way. The defence PCR file could contain a wide range of material that would back up the suggestion that they shouldn’t be charged, depending on the case. It is likely that the defence PCR file would make it less likely that they would be charged for any offence.Olliers Pre-Charge Work
Since the inception of the Guidelines in 2020, and the revised guidance in 2022, Olliers have been at the forefront of promoting this type of work as being hugely beneficial to any type of client being investigated by the Police. We have devised our own framework as to how to do this work. We have a number of solicitors undertaking this work which has helped to obtain out of court disposals for some clients, non-custodial sentences for others and avoided some clients being prosecuted at all. I think it would be fair to say that even we were surprised at how beneficial this could be for clients.Study into the Effectiveness of Pre-Charge Work
In 2022 we were contacted by Dr Ed Johnston who noted that we were one of few solicitors in the UK promoting this type of work, albeit on a private paying basis. He was undertaking a study into the effectiveness of PCE both on a legal aid basis and on a private paying basis. A number of solicitors who did pre-charge work completed a survey he designed to be used as part of his study. The report he compiled can be seen here.Conclusions of the Study
Having looked into the PCE undertaken by solicitors under the legal aid provisions his initial analysis was as follows: Unsurprisingly, PCE is viewed generally as a negative development. There is a fear that the police will use what they find in PCE as evidence to help convict the suspect. However, the guidance clearly says that PCE ought to stop and the suspect re-interviewed should they discover anything they want to use at trial. As such, PCE should be considered an (almost) risk-free option. He then looked at work undertaken at Olliers on a private paying basis and his analysis was as follows: The most significant disparity between a Legal Aid client and a privately paying client is the time taken to undertake engagement with the police. Your firm suggests that the results are generally good where you have the time to engage. Nevertheless, I think there is an argument that engaging with PCE represents advancing your client’s best interest. Of course, with the privately paying suspect, you have the time and financial interest to do so. But I think there is a danger of widening the gulf between the Legal Aid suspect and the private paying client. This effectively creates a two-tier justice system, one for those with means and one for those without.The study concluded as follows:
From the surveys, it can be said that PCE could work. The privately paid client affords a vast amount of time to have their lawyer engage with the police and potentially divert the case from prosecution (which occurred 75% of the time). The government needs ought to consider several things to ensure the Legal Aid Client is not disadvantaged further:- Raise the rates of remuneration for engagement
- Increase the upper limit of claims
- Offer training to police regarding how to properly engage with PCE
Conclusions to be drawn from the Report
It seems from the study that the provisions allowed for PCE under legal aid funding are insufficient. The maximum allowed time is insufficient and in all likelihood the rate of remuneration is unlikely to attract people to do the work in the first place. That may explain why the take up rates for this work are so low and under the expected funding allocated for it (by a huge disparity). The study also suggests that PCE is a worthwhile exercise for people who can afford to fund it under private paying rates. The funding allows enough time for worthwhile engagement with the client and Police, whatever route the case takes. Private paying PCE maximises the chances of the best possible outcome for the case. Written by Toby Wilbraham With Thanks to Ed Johnston Contributed to by all the solicitors at Olliers who completed the questionnaire that formed the basis of the study.- About the Author
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Toby Wilbraham( Partner )
Toby is a highly experienced solicitor having been at Olliers for in excess of 20 years. He works as a litigator as well as an advocate in the Magistrates’ Court, Crown Court and Court of Appeal. Due to his experience he also advises clients, who were initially represented by other firms, as to whether they could successfully appeal the result of their cases.