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Pre-charge engagement

Lawyers specialising in pre-charge engagement between the defence and the police

The team at Olliers understands that for anyone subject to a criminal investigation it is often the worst experience of their lives. Life is on hold. It may not be possible to return to the family home. There is a risk of adverse publicity. Employment and travel may be affected.

In some cases, existing legal teams have advised that nothing can be done until police have completed enquiries. This will never happen at Olliers. We focus on a front footed, proactive approach which involves early police contact. We look at all potential avenues of investigation and defence lines of enquiry.

The uncertainty and anxiety of being under investigation places a huge burden upon someone despite the fact that no charges have even been brought. This is the point at which a suspect needs to consider what proactive steps should be taken on their behalf. This is where the choice of defence legal team is so important.

It is particularly important that defence teams give thought to early ‘pre-charge engagement’ with investigating officers. It is equally important that a defence team, insofar as possible, monitors the investigation and considers whether investigators are complying with the DPP’s Guidance on Charging and the Charging Standard.

The Investigations Team at Olliers is known for its proactive approach in criminal investigations. We place great emphasis on bringing cases to an early conclusion, without a client having to face the stress, trauma and cost of court proceedings.

Throughout an investigation we maintain contact with investigating officers, establishing, as far as possible, the full extent of the case against our client. We simultaneously undertake defence enquiries that support our client’s case. Our ultimate objective, in appropriate cases, is to make representations against charge by arguing that there is not a ‘realistic prospect of a conviction’ or that a prosecution is not in the ‘public interest’

‘Pre charge engagement’ describes the relationship between defence lawyers and investigators, it’s provisions are contained at Annex B of the ‘The Attorney General’s Guidelines on Disclosure 2020’ which came into force on 31st December 2020.

Watch the Olliers’ pre-charge team panel interview on pre-charge engagement

In the panel interview the specialist Olliers pre-charge engagement team discuss defending criminal allegations at the pre-charge stage.

Annex B Pre-charge engagement 

Pre-charge engagement refers to any voluntary engagement between parties to an investigation after the first interview under caution.  It is a voluntary process and can be terminated at any time.

It may involve;

  • Giving a suspect an opportunity to comment on further lines of enquiry
  • Establishing whether a suspect can identify other lines of enquiry
  • Asking a suspect whether they can provide access to digital material
  • Discussing ways to overcome barriers to obtaining evidence
  • Agreeing key word searches of digital material
  • Obtaining a suspect’s consent to access medical records
  • A suspect identifying and providing details of potential witnesses
  • Clarifying whether expert or forensic evidence is agreed

The above list is not exhaustive.

Pre-charge engagement is encouraged by the Code for Crown Prosecutors and significantly, Annex B states that it “may impact decisions as to charge”.

Pre-charge engagement is not appropriate in every case.   It should not be a replacement for a further interview under caution.  It should not be instigated in circumstances where the investigator and prosecutor may seek to rely on the contents of answers in evidence at trial.

A no comment interview does not preclude the possibility of pre-charge engagement.

Benefits of pre-charge engagement as identified as Annex B are as follows;

  • A suspect who maintains their innocence will be aided by the earlier identification of lines of enquiry, which point away from the suspect or towards another suspect.
  • Pre-charge engagement can help inform the prosecutor’s charging decision – in other words avoiding a case being charged that would otherwise be stopped later.
  • Issues and disputes could be narrowed so unnecessary enquiries can be avoided.
  • Early resolution of a case reduces anxiety for suspects and complainants.
  • Costs are reduced.

Who may initiate pre-charge engagement?

It may be appropriate for the investigator, the prosecutor, the suspect’s representative or even an unrepresented suspect to initiate pre-charge engagement.

Dialogue between Prosecutor and Investigator

If an investigator refers a case to a prosecutor, they should confirm whether pre-charge engagement has taken place or whether it would benefit a case.

Significantly, prosecutors and investigators should be alert to the use of pre-charge engagement as a means to frustrate or delay an investigation.  Annex B states that engagement should not provide the suspect with an opportunity to make unfounded allegations against a complainant.

Information on pre-charge engagement 

The investigator should provide information on pre-charge engagement to a suspect or their representative before or after an interview.  The process should be explained in simple terms orally or in writing.  The explanation may include the aims and benefits of the process, any relevant time scales and a police point of contact to make future representations. 

Conducting pre-charge engagement 

This may take place face to face or by correspondence.  It need not always be a formal process.  In some circumstances, a more formal mechanism may be required.

Disclosure during pre-charge engagement 

The disclosure of unused material must be considered as part of the pre-charge engagement process, ensuring that discussions are fair and the suspect is not misled, as to the strength of the prosecution case.

Further interviews under caution

Before, during and after pre-charge engagement, the investigator/prosecutor should consider whether further material, additional to that contained in the summary of the allegation should be disclosed to a suspect.  The investigator/prosecutor should at all stages bear in mind the need to cease pre-charge engagement and put further evidence to a suspect in the form of an interview under caution.

Recording discussions relating to pre-charge engagement 

Recording the discussions, a full written, signed record of pre-charge engagement discussions should be made.  The prosecutor and/or investigator should record every key action involved in the process.  A record should be made of all of the information provided by a suspect’s representative.  The prosecutor may be required to disclose information provided by a suspect’s representatives to another party (for example subsequent defendant).  A record should also be made of information and material provided to a suspect’s representative.  The prosecutor and investigator should ensure that records of pre-charge engagement are provided to each other.

In summary

Effective pre-charge engagement will ensure that weak cases are not taken to court. For anyone facing any kind of criminal investigation it is crucial that their legal representative is actively committed to a strategy involving early, proactive pre-charge engagement with investigators.

Contact our specialist pre-charge engagement  lawyers

If you would like to explore how Olliers can assist you please contact our specialist team  by telephone on 0161 834 1515 or via email to info@olliers.com 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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