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.
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 pre-charge investigations lawyers
If you would like to explore how Olliers can assist you please contact Ruth Peters or Matthew Claughton by telephone on 0161 834 1515 or via email to info@olliers.com for a confidential discussion.
