National File Standard

Why the National File Standard Matters 

At Olliers, we understand that strong defence work begins at the earliest stage of an investigation and we place great emphasis on a proactive approach during the investigation stage of a case. It is important to understand at all times, exactly what stage the police investigation has reached, what enquiries have been undertaken and what material is required before a charging decision can be made. 

The National File Standard requires investigators to approach a case from both the prosecution and defence point of view. This includes outlining their understanding of the defence case, any explanation provided by the suspect and highlighting any material that may assist the defence. Investigators must also set out the reasonable lines of inquiry they have already completed, including those that support the defence. These requirements make early, proactive defence engagement essential.  

The Guidance makes it clear that if investigators fail to provide the correct material, the CPS may be unable to apply the Code for Crown Prosecutors and may refuse to charge either immediately or at all. Accurate case file preparation is therefore critical.  

The National File Standard 

The material required under the National File Standard is summarised below. It is important for defence practitioners to consider all aspects of the standard and the material required 

Compliance with NFS 

The NFS allows police officers to understand the prosecutor’s requirements. The emphasis is on ‘getting it right first time’. Compliance with the NFS should mean that charging decisions can be taken without the need for requests for further information or protracted discussions between an investigator and a prosecutor. 

The NFS does not focus solely on a key stage of a case but is intended to provide the prosecutor, as well as the defence, and the court with the material relevant to all stages of a case. This means that where, for example, material or information is submitted as part of a request for a charging decision it need not be resubmitted at a later stage. 

Information Required for Charging Decision 

The request for a charging decision must be submitted through the digital interface between the police and CPS and must contain key information relating to the suspect, the offence, the investigation, material subject to examination, outstanding evidence, victims and witnesses. 

It should also address the Code Test, i.e. the reasons why both the evidential and public interest stages of the Full Code Test are met. This is significant if a pro active strategy is employed by the defence. The obligation upon the police to address this issue means that they have to consider all points made by the defence during the course of ‘pre charge engagement’ or contained within written representations against charge. 

The officer will have to address the issue of whether in their view there is a ‘realistic prospect of a conviction’. 

The same obligation applies in cases where the defence contends that a prosecution is not in the public interest. 

Information relating to a suspect 

• language spoken, relevant dialect, whether interpreter required; 
• potential mental health issues; 
• the date and time of arrest; 
• status: custody, bail, or otherwise; 
• information in support of any remand application; 
• current or pending proceedings; 
• relevant antecedents; 
• any relevant orders to be sought on conviction. 

Information relating to the offence(s) 

• case type: e.g. whether domestic abuse or hate crime 
• proposed charge(s); 
• Statutory Time Limits; 
• whether A-G’s Consent; DPP’s Consent required; 
• factual summary; 
• likely issues; 

There are a number of key pieces of information that focus directly upon the defence case and weaknesses in the prosecution case. 

• understanding of the defence case, including any explanation offered suspect, ‘whether in formal interview, defence statement or otherwise’, (inevitably, any explanation offered during the course of ‘pre-charge engagement’ simply cannot be ignored); 
• details of the questions asked of suspect during interview under caution 
• if suspect was not interviewed, reasons for that decision; 
• analysis of strengths and weaknesses the case (again, defence representations as to weaknesses cannot be ignore); 
• anticipated plea; 
• whether a s.70 POCA committal should be sought in potential confiscation cases 

Information relating to the Investigation 

• Significantly, the information must detail ‘the reasonable lines of inquiry already conducted, including those that may assist the defence’, and results of those inquiries. This is important because the greater the level of ‘pre charge engagement’, the better understanding the investigator will have of the defence case and relevant lines of inquiry; 
• the lines of inquiry which will not be pursued and the rationale for that decision (again, high level pre charge engagement may make certain lines of enquiry difficult to ignore); 
• outstanding (reasonable) lines of inquiry which remain outstanding, together with timescales and an objective assessment of impact of those inquiries on a charging decision to charge; 
• explanation for delay between the offence, investigation and referral to the CPS; 
• status of linked offenders: 
• pending arrests/interviews; 
• already charged, and their status; 
• dealt with by Out of Court Disposal; 
• subject to no action; and 
• relevant account or explanation given, (again, ‘pre charge engagement’ has the potential to be significant here); 
• status of linked investigation(s); 
• whether any sources of information require protection; 
• details of any action taken in relation to asset recovery.  

Material subject to examination 

There may have been an examination of; mobile communication devices, social media accounts, audio-visual evidence or third party material. If this has happened, there must be an explanation of; 

• the purpose and impact of any examination; 
• why examination is deemed reasonable; 
• whether consent obtained; 
• the examination strategy (including parameters of examination of CCTV, ANPR, use of cell site); 
• extent of download or copying, including key word setting or date/time parameters; 
• if device(s)/material returned without examination, or an account not further examined, the justification; 
• whether the suspect/ representative asked for/provided key word searches.  

Outstanding evidence 

Certain types of evidential material may not be immediately available at the point of a charging decision request: 

• audio-visual evidence  
• bad character evidence 
• communications evidence  
• forensic evidence  
• identification evidence 
• medical evidence  

Where any of the above are outstanding the information must the nature of that material, the target date for availability, issues that may affect availability. 

Victims and witnesses  

The information must address; 

• whether a victim/witness has failed to engage in investigation and 
• their relevance to the case. 
• where there is a repeat victim, 
• where any victim or witness is vulnerable or intimidated victim or witness is, 
• basis of eligibility for special measures; and a special measures assessment, 
• other supporting and/or protective measures proposed for any victims or witnesses. 
• where the main language spoken is other than English,any interpretation requirement and any relevant dialect 
• whether Victim Personal Statement has been offered and current position 

Other considerations 

The information must address; 

• matters of local or public interest; 
• other confidential information; 
• views of the investigating officer; 
• other issues on which the decision of the prosecutor is sought.

Never has it been more important for the defence lawyer engaged in pre-charge representation to fully understand the requirements upon investigating officers during the investigation stage of a case. 

How Olliers Use the National File Standard to Help You 

Our proactive approach during the investigation stage is designed to ensure that investigators meet their obligations. We identify and highlight reasonable lines of enquiry, point out gaps or inconsistencies and ensure defence favourable material is not overlooked. This protects your position and helps shape the file before it reaches the CPS for a charging decision. 

Requesting a Charging Decision 

Since 31 December 2020, charging requests must be submitted digitally through the police–CPS interface and must include the prescribed documents and information. The CPS will not make a charging decision unless the file meets these standards. 

Frequently Asked Questions