Olliers’ reaction to the Government’s Response on Remuneration for pre-charge engagement

The Investigations Team at Olliers place great emphasis upon pre-charge engagement between the defence and the police (or other investigators). We feel that this stage is often the most important stage of a criminal case.

The work we undertake pre-charge is always on a privately funded basis. One reason is that, in the main, there is no funding. However, this is about to change following the Government’s response to its Consultation on remuneration for pre charge engagement.

The issue is whether, in view of the introduction of a level of funding, defence teams will be able to represent their client’s interests during the pre-charge engagement stage. At Olliers we feel that the only way we can deliver the level of service our client’s deserve is on a privately funded basis. The reasons for our position are explained below.

Backgound

The Attorney General’s review of Guidelines for Disclosure set out the framework for pre-charge engagement. Revised Guidelines came into force on 31^st December 2020. They contained provisions for pre charge engagement but no funding for such engagement.

The Government quickly sought to consult on funding arrangements. It proposed ‘a new unit of work for advice and assistance associated with pre-charge engagement’.

Proposals

The proposed hourly rate is £51.28 in London and £47.45 outside London. There is an upper limit of of £273.75, beyond which providers will be required to apply to the Legal Aid Agency for an extension

The Government, in the Consultation, recognised ‘practitioners’ concerns around the current level of the hourly rates in the fee schemes and the impact this has on the sustainability of the profession’. 

However, the level of hourly rates was not in scope of the Consultation. 

Following consideration of the Consultation responses, the Lord Chancellor decided that the proposals would come into force. There is also an additional requirement that the investigator formally agrees that the case is appropriate for pre charge engagement. 

Payment for pre-charge engagement work, can only be claimed, if there is file note detailing an oral or written agreement for pre charge engagement to commence.

The Government is of the view that representations to the CPS to persuade them not to proceed with a case would not be covered if the decision to charge had already been made. Presumably, this is because these would amount to ‘post charge representations’.

Representations made prior to a charge and prior to an agreement that the case was suitable for pre-charge engagement is not covered. We therefore have a strange situation in which an investigator has to authorise engagement before the legal representative is funded. Put differently, the police now have the authority to grant legal aid.

In order to ensure that payment for pre-charge engagement work can be claimed, the Legal Aid Agency will require a file note detailing an oral or written agreement on which a pre-charge engagement fee is to be claimed.

The Attorney General’s 2018 review of the efficiency and effectiveness of disclosure in the criminal justice system looked very closely at pre charge engagement. The review found that ‘early and meaningful’ engagement between the prosecution team and the defence is crucial ‘to improve the disclosure process and that a lack of pre-charge discussion between investigators/prosecutors and those representing the suspect, hampers early resolution of evidential issues, particularly where there is a large quantity of digital material’.

Olliers approach to pre-charge engagement

When we are instructed during the pre-charge stage of a case, particularly when we have not been involved in the original interview, there are a number of steps that we normally take before we approach the police.  This will include taking initial instructions from our client and obtaining the file from the solicitor acting at the police station, (frequently the duty solicitor).  We will then assess the situation and look at areas of proactive defence work. There may be witnesses to speak to, digital material may be relevant, there may be evidence and lines of enquiry that point way from our client involvement, there may be forensic lines of enquiry, and we may look to retrieve social media evidence.  

There are therefore a significant number of steps we normally take before we approach the police to formalise a process of ‘pre-charge engagement’.  If we make early contact with the police, it is to advise them of our involvement and establish a rapport with the officer dealing with the matter.  This is more a question of laying down a marker rather than formalising a process of pre-charge engagement.  

Only when we have assessed the situation will we consider the issue of pre-charge engagement.  What we are less likely to do is ask an investigating officer to confirm that this is a pre-charge engagement case. 

Not every case ends with formal representations against charge.  We may ask an officer to investigate certain matters.  We may provide an officer with information that points away from our client.  We may ask for the preservation of material.  No case is ever the same.

There are a number of reasons why we would not want to make early contact and establish formal pre-charge engagements without being fully prepared.  In many cases, we may go to counsel to discuss strategy.  One of the most important elements of proactive defence strategy is for the defence lawyer to not consider an end game and worst-case scenario, which is a Crown Court trial. During the investigation stage, our lawyers will also wear the hat of a Crown Court Litigator and a Crown Court Advocate.  

On a publicly funded pre-charge engagement case there is potential for a lot of work being done before any approach is made about pre charge engagement. Inevitably, this would be without remuneration because the officer dealing with the matter would not yet have confirmed that the case was suitable for pre-charge engagement.  

At Olliers, the single biggest impediment to us working on cases on a publicly funded basis is the level of remuneration.  We make a promise to all our clients, a ‘service pledge’ of excellence. The only way we can achieve the level of excellence in service that our clients deserve is by proper rates of remuneration that allows the time and resources the case merits. It may well be that the rates of remuneration work in some cases for some firms but it is not a realistic solution for Olliers.