Guidance on Charging and the Charging Standard
The Director of Public Prosecution’s Guidance on Charging (31st December 2020) provides a clear structure in which criminal allegations are investigated and prosecuted. The pre-charge specialists at Olliers all have a detailed working knowledge of the Guidance and it is a crucial part of a proactive pre-charge engagement strategy. It is what sets us apart from other defence practitioners.
The Charging Standard is the test to be applied by a prosecutor before making a decision to prosecute. It is contained within the 2018 Code for Crown Prosecutors. Under the Charging Standard a prosecution cannot commence unless there is a ‘realistic prospect of a conviction’ and a prosecution is in the ‘public interest’.
The Code for Crown Prosecutors clarifies that a realistic prospect of conviction means “an objective, impartial and reasonable jury, bench of magistrates or a 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.”
The Olliers team recognises the importance of understanding the relationship between the Charging Standard and the Guidance.
The relationship between the Charging Standard and the Guidance for defence teams
Our pre-charge team place huge emphasis in monitoring the police and their compliance with the Guidance as part of our proactive approach to pre-charge work.
We look to engage with the police at an early stage of an investigation. We always consider whether we can make representations against charge, by arguing that there is not a ‘realistic prospect of conviction’ or that it is not in the public interest to prosecute.
It is no coincidence that the Guidance was published on the same day (31st December 2020) as the arrangements for ‘pre-charge engagement’ (Annex B Attorney General’s Guidelines on Disclosure 2020).
At Olliers we regard the Guidelines as a powerful resource during the pre-charge engagement process.
Areas covered by the Guidance
The Guidance outlines;
- The charging process
- Application of the Full Code Test in deciding whether to prosecute
- The Threshold Test
- Obtaining advice from a prosecutor
- Out of court disposals
- The National File Standard: material and information required for charging and prosecution
- Understanding post-charge case management
- Division of responsibility between police and CPS
- Procedure for charging referrals via the Digital Interface
- Information required to be submitted to the Digital Interface before charging decisions can be made
- Case types where early advice is recommended.
Understanding these provisions is at the heart of a proactive and engaged defence strategy.
The Guidance makes it clear that a police investigator must pursue all reasonable lines of enquiry even when they point away from a suspect and, at Olliers, we frequently remind officers of this requirement. It is particularly useful that the Guidance specifically addresses the manner in which the police should address certain types of evidence namely;
- Audio visual evidence
- Bad character evidence
- Communication evidence
- Forensic evidence
- Identification evidence
- Medical evidence
The Guidance recognises ‘the overarching principles’ set out in Sir Brian Leveson’s review of ‘Efficiency in Criminal Proceedings’, the most important of which is perhaps the concept of ‘getting it right first time’.
Police officers and prosecutors must comply with this Guidance to ensure that charging decisions are fair and consistent and comply with the Police and Criminal Evidence Act, the PACE Codes of Practice and the Code for Crown Prosecutors (“the Code”). Failure to follow the Guidance may risk cases failing or decisions being subject to legal challenge.
The guidance is issued by the DPP for police use, but the provisions apply equally to other investigators where cases are prosecuted by the CPS themselves
Many defence lawyers regard the Guidance as relevant to the role of investigators to police and prosecutors. We do not. The Olliers team has a comprehensive knowledge and understanding of the Guidance, greater than that of the police themselves.
Although investigators must follow the Guidance there is a risk that they lose sight of their primary objective which is establishing whether or not the Charging Standard is met. If we feel that a weak case has been ongoing for too long, we will look at strategies for bringing that case to an early conclusion. Click here to read more.
Our level of knowledge of both the Code for Crown Prosecutors and the DPP’s Guidance on Charging allows us to draw investigators attention to the circumstances in which a weak case can be brought to an early conclusion, particularly when further evidence or material is unlikely to affect the outcome – something that both the Guidance and the Code emphasise.