The Director of Public Prosecution’s Guidance on Charging 2020
The Director of Public Prosecution’s Guidance on Charging (31st December 2020) provides a clear structure in which criminal allegations are investigated and prosecuted. Defence teams must have a detailed working knowledge of the Guidance as part of a proactive pre-charge engagement strategy.
The Guidance which was last updated by former DPP Keir Starmer in 2013 provides a clear set of guidelines for prosecutors and police ‘to ensure cases are referred to the CPS at the right time; with the right material and information so that prosecutors can make immediate charging decisions and cases pass effectively and efficiently through the criminal justice system’.
The significance of the Guidance for defence teams
The Olliers Investigations 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).
Director of Public Prosecutions Max Hill QC;
‘There has been a major shift in working practices and priorities throughout the criminal justice system in recent years and it is vital there is clear guidance to help police and prosecutors navigate these effectively.
The Attorney General’s guidelines focus on getting disclosure right and getting it done early so its impact on the evidence is known. These are significant changes and we must continue to work collaboratively to embed them.”
At Olliers we regard the Guidelines as a powerful resource during the pre-charge engagement process.
Areas covered by the Guidance
The Guidance is now in effect and takes the place of previous publications. 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”). As the police get to grips with the Guidance it is inevitable that mistakes will be made. 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
At Olliers we recognise the importance of defence teams being at least as familiar with the obligations upon the police as are the police themselves.