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Charging guidance

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 on 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;

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. 

Contact our pre-charge investigations lawyers

If you would like to explore how Olliers can assist you please contact our new enquiry team for a confidential discussion.

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Case Studies

Case Study One
21-year-old male of good character faced allegation of date rape in which the complainant claimed to have been unconscious for ten hours. Olliers were able to prove social media activity throughout the night and downloading of an app together with text activity from the alleged victim the following day. Olliers also provided police with details of a flatmate who witnessed sexual activity. Police were also provided with a motive for the fabricated complaint. Following representations to the police, matter came to a swift conclusion without even going to the Crown Prosecution Service for a charging decision.

Case Study Two
Young man faced allegation of sexual assault in a nightclub. It was suggested that he had assaulted a complete stranger without any earlier interaction. Olliers were able to show that alleged victim had in fact connected with the suspect on WhatsApp at the time of the incident which would have been impossible on her version of events. Olliers were also able to show that complainant’s boyfriend had unexpectedly arrived in the nightclub which gave an explanation and motive for the false allegation. No charges were brought.

Case Study Three
Client faced an allegation of historic rape based upon one incident thirty years earlier. Olliers were able to produce to the police a poem sent to the defendant by the complainant ten years previously i.e. twenty years after the alleged incident in which she admitted to her infatuation with the suspect at the time of the incident. Representations were made including a defence explanation for the allegations being made.  Crown Prosecution Service took the view that there was not a realistic prospect of conviction and no charges were brought.

Case Study Four
Client  was arrested and interviewed under caution in connection with historic allegations of rape. He was subsequently released under investigation pending further police enquiries. On contacting Olliers, we immediately adopted a proactive approach and established contact with both the officer in the case and the duty solicitor who had represented the client at the police station. Following detailed consideration of the police station notes, and on taking thorough instructions from our client, we drafted representations against charge on his behalf. The aim of our representations was to persuade the Crown Prosecution Service that there was ‘not a realistic prospect of conviction’ as required by the Code for Crown Prosecutors. The police investigation was ongoing for some time and we periodically liaised with the investigating officer to provide the client with updates. Having considered our representations, the police decided to take no further action against our client and the matter came to a close.

Case Study Five
Our client was arrested and interviewed under caution in relation to historic allegations of rape, sexual assault and controlling or coercive behaviour. He was subsequently released under investigation pending further police enquiries. The client contacted Olliers shortly after his arrest. Following this, we obtained the case papers from the duty solicitor who had represented him during interview. We also established contact with the investigating officer and drew their attention to some initial points about the case which would require further investigation. As the investigation developed, we drafted comprehensive representations against charge based on our client’s detailed instructions and relevant material he had provided. On considering our representations, the police decided to take no further action against our client and the matter was concluded.

Case Study Six
Our clients were directors of a payment processing company. This was a multi-jurisdictional investigation involving restraint of assets on several continents. Extensive police liaison took place, a substantial amount of exculpatory material was provided to the police. Complex and ultimately successful applications to vary and discharge restraint orders were made. Representations against charge were submitted. The matter concluded following a successful application under the Criminal Justice and Police Act 2001 for return of items unlawfully seized by police and decision was made to take no further action against our clients.

Case Study Seven
Client E was arrested and interviewed under caution concerning allegations of rape and sexual assault. He was released under investigation as the police continued with their enquiries. Client E contacted Olliers only a few days following his arrest to request pre-charge representation. We swiftly proceeded to make contact with the investigating officer to establish a line of communication. We also quickly obtained the case papers from the duty solicitor whom represented Client E at the police station. For the following five months, we maintained contact with the investigating officer and regularly liaised with them regarding bail requirements and the progress of their investigation. After in-depth consideration of the police station notes and all of the information and instructions provided by the client, we disclosed some material to the investigating officer concerning the allegations. Following review by the police and consideration of their lines of enquiry, a decision to take no further action was reached thereby concluding the investigation.

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