By Toby Wilbraham
Traditionally when someone is investigated for an allegation the police did all the pre-charge work. The police would receive a complaint from a person and investigate it. They could do the following as part of their investigation:
- Take a statement from the complainant detailing the allegation,
- Interview the suspect (either voluntarily or having arrested them).
If the suspect denied the offence then they would continue to investigate by doing the following, if it hadn’t been done prior to arrest;
- Take statements from any relevant witnesses,
- Obtain any forensic evidence (DNA, fingerprints etc),
- Obtain CCTV footage,
- Obtain any digital downloads (phone / laptop analysis),
- Obtain any other relevant evidence.
Once the investigation was completed then the officer may want to interview the suspect again, if the additional evidence added to the case, else they may decide that this wasn’t required.
Once this was concluded the police would decide whether or not the case passed the evidential threshold to pursue the case. If they thought it did then the majority of cases would then be passed to the Crown Prosecution Service (CPS) for a lawyer to decide what, if anything the suspect should be charged with.
A CPS lawyer would then be allocated to look at the police file. The CPS lawyer could pass the file back to the officer if they felt that there were still outstanding enquiries to make. Alternatively, they could agree with the police officer’s recommendations on the file (usually to charge) or alternatively decide to charge with a different offence or decide the case didn’t pass the charging threshold and decide to take no further action. The important point to note here is that the CPS lawyer would usually only look at the police file when deciding what to do. This would invariably recommend that the suspect should be charged.
The Attorney General’s Guidance on Disclosure 2020
In 2020 the disclosure guidelines were introduced in the UK. These were a game changer and set up a framework that allowed defence solicitors to contact the police with a view to pre-charge engagement (PCE). No such framework had existed before. This allowed the opportunity for defence solicitors to have more of an input at an early stage, an input that could impact the charging decision.
Some guidance to how an officer should approach an investigation were set out as follows:
- Investigators should approach the investigation with a view to establishing what actually happened. They are to be fair and objective.
- Investigators should ensure that all reasonable lines of inquiry are investigated, whether they point towards or away from the suspect.
These are important points as investigations could often be suspect-centric and the guidelines suggested that an officer should investigate other avenues even if they lead away from the suspect that they had in mind.
Pre-Charge Engagement Under the Guidelines
The guidelines set out what pre-charge engagement could be as follows:
- Pre-charge engagement may, among other things, involve:
- Giving the suspect the opportunity to comment on any proposed further lines of inquiry.
- Ascertaining whether the suspect can identify any other lines of inquiry.
Although the guidance set out a number of examples it didn’t define what it had to be leading to the conclusion that pre-charge engagement could include a number of types of contact with the Police that could be beneficial to the suspect. However the police are able to disengage pre-charge engagement at any time they wish.
Funding Pre-Charge work
After the Guidelines were brought out the Government allowed (from 7th June 2021) limited legal aid funding for the work. On their website they state “The fees remunerate solicitors who act on behalf of suspects engaged in this process, these will be remunerated on an hourly rates basis with an upper costs limit of £273.75.”
The problem with the funding provided is that investigations can take over a year and the upper limit of £273.75 is, in my opinion at least, wholly insufficient to undertake this work, even on a basic level.
Private Paying Work
Pre-charge work can be undertaken on a private paying basis. Fees can be set according to the type of work that needs to be done. Sometimes more work needs to be done on a case than other types of work. Work types we deal with includes the following:
Cases where the suspect accepts he is guilty of the allegation
Where a client accepts that they are guilty of an allegation and there is sufficient evidence to prosecute, pre-charge work can be beneficial to them.
- Cases where we argue for a diversion from Court
In these types of cases we can make representations that a client does not need to be prosecuted at court but can be adequately dealt with either by a caution, conditional caution or even community resolution. We can make this argument for a number of reasons based on the client’s particular circumstances, the charging guidance and other factors that have an influence. A good example is where you have a client with a mental health condition, or autism and that condition affects their culpability.
- Cases where court proceedings are inevitable
Where there is sufficient evidence, and there are no grounds to argue for a court diversion, pre-charge engagement can still be beneficial to prepare a case for mitigation. Often the investigation time can be used to complete relevant rehabilitative courses, obtain psychological repots, character references and other material that can be ready before the first appearance in court. This helps to maximise the chances of a favourable outcome at court.
Cases where the suspect denies he is guilty of the allegation
Where a suspect is investigated for an allegation that they deny they can really use the provisions of the PCE framework to their advantage. Through their solicitors the suspect can liaise with the police and suggest reasonable lines of enquiries to them. They can provide details of witnesses who could help, CCTV that could assist and anything else that could be of use. As the police are obliged to investigate all avenues, including avenues that point away from the suspect this can be hugely beneficial to them.
Once the investigation is complete then Pre-Charge Representations (PCR) can be made to the police or the CPS lawyer deciding whether to charge or not. This would be given to them alongside the police file and would help them to look at the case objectively in a more balanced way. The defence PCR file could contain a wide range of material that would back up the suggestion that they shouldn’t be charged, depending on the case. It is likely that the defence PCR file would make it less likely that they would be charged for any offence.
Olliers Pre-Charge Work
Since the inception of the Guidelines in 2020, and the revised guidance in 2022, Olliers have been at the forefront of promoting this type of work as being hugely beneficial to any type of client being investigated by the Police. We have devised our own framework as to how to do this work. We have a number of solicitors undertaking this work which has helped to obtain out of court disposals for some clients, non-custodial sentences for others and avoided some clients being prosecuted at all. I think it would be fair to say that even we were surprised at how beneficial this could be for clients.
Study into the Effectiveness of Pre-Charge Work
In 2022 we were contacted by Dr Ed Johnston who noted that we were one of few solicitors in the UK promoting this type of work, albeit on a private paying basis. He was undertaking a study into the effectiveness of PCE both on a legal aid basis and on a private paying basis. A number of solicitors who did pre-charge work completed a survey he designed to be used as part of his study. The report he compiled can be seen here.
Conclusions of the Study
Having looked into the PCE undertaken by solicitors under the legal aid provisions his initial analysis was as follows:
Unsurprisingly, PCE is viewed generally as a negative development. There is a fear that the police will use what they find in PCE as evidence to help convict the suspect. However, the guidance clearly says that PCE ought to stop and the suspect re-interviewed should they discover anything they want to use at trial. As such, PCE should be considered an (almost) risk-free option.
He then looked at work undertaken at Olliers on a private paying basis and his analysis was as follows:
The most significant disparity between a Legal Aid client and a privately paying client is the time taken to undertake engagement with the police. Your firm suggests that the results are generally good where you have the time to engage.
Nevertheless, I think there is an argument that engaging with PCE represents advancing your client’s best interest. Of course, with the privately paying suspect, you have the time and financial interest to do so. But I think there is a danger of widening the gulf between the Legal Aid suspect and the private paying client. This effectively creates a two-tier justice system, one for those with means and one for those without.
The study concluded as follows:
From the surveys, it can be said that PCE could work. The privately paid client affords a vast amount of time to have their lawyer engage with the police and potentially divert the case from prosecution (which occurred 75% of the time).
The government needs ought to consider several things to ensure the Legal Aid Client is not disadvantaged further:
- Raise the rates of remuneration for engagement
- Increase the upper limit of claims
- Offer training to police regarding how to properly engage with PCE
By increasing the fees and the upper limit of claims, active engagement could occur between the defence and police. From surveying your staff, it is clear that under 5 hours does not represent an opportunity for active engagement. But by funding a more significant amount of time to engage, a high volume of cases could be diverted from trial, thus making economic savings, delivering justice more swiftly and significantly reducing the burden on the courts.
PCE could work. It needs to be given the proper framework to allow it to thrive.
Conclusions to be drawn from the Report
It seems from the study that the provisions allowed for PCE under legal aid funding are insufficient. The maximum allowed time is insufficient and in all likelihood the rate of remuneration is unlikely to attract people to do the work in the first place. That may explain why the take up rates for this work are so low and under the expected funding allocated for it (by a huge disparity).
The study also suggests that PCE is a worthwhile exercise for people who can afford to fund it under private paying rates. The funding allows enough time for worthwhile engagement with the client and Police, whatever route the case takes. Private paying PCE maximises the chances of the best possible outcome for the case.
Written by Toby Wilbraham
With Thanks to Ed Johnston
Contributed to by all the solicitors at Olliers who completed the questionnaire that formed the basis of the study.