The National File Standard: material and information required for charging and prosecution under the DPP’s Guidance on Charging 2020
Charging
At Olliers we place great emphasis on a proactive approach during the investigation stage of a case. It is important to understand at all times, exactly what stage the police investigation has reached, what enquiries have been undertaken and what material and is required before a charging decision can be made.
It is also crucial to understand the procedure and requirements of the National Charging Standard (NFS).
The Director of Public Prosecution’s Guidance on Charging 2020 came into force on 31 December 2020. Now the request for a charging decision must be submitted through the digital interface between the police and CPS.
The request for a charging decision must be supported by the provision of specific material and information.
The Guidance makes it very clear that ‘failure to supply the correct material and information for a charging decision may result in the prosecutor being unable to apply the Code and refusing to charge immediately or at all’.
The section dealing with ‘Information required for a Charging Decision’ contains numerous requirements for an investigator to look at the case from the suspect’s perspective.
Any defence ‘pre-charge engagement’ strategy should focus on the requirement upon investigators to provide the prosecution lawyer with material and information that may assist the defence. It is almost a requirement to look at matters from a defence perspective. So for example, key information in relation to the offence requires the investigator to outline their ‘current understanding of the defence case, including any explanation offered by the suspect, whether in formal interview, defence statement or otherwise’. The reference to ‘or otherwise’ would inevitably include additional information provided post interview but during pre-charge engagement.
The section focusing on the investigation requires the police to outline ‘the reasonable lines of inquiry already conducted, including those that may assist the defence, and the results of those inquiries’. This means that defence engagement drawing investigators to reasonable lines of enquiry simply cannot be ignored.
The National File Standard
The material required under the National File Standard is summarised below. It is important for defence practitioners to consider all aspects of the standard and the material required
Compliance with NFS
The NFS allows police officers to understand the prosecutor’s requirements. The emphasis is on ‘getting it right first time’. Compliance with the NFS should mean that charging decisions can be taken without the need for requests for further information or protracted discussions between an investigator and a prosecutor.
The NFS does not focus solely on a key stage of a case, but is intended to provide the prosecutor, as well as the defence, and the court with the material relevant to all stages of a case. This means that where, for example, material or information is submitted as part of a request for a charging decision it need not be resubmitted at later stage.
Information Required for Charging Decision
The request for a charging decision must be submitted through the digital interface between the police and CPS and must contain key information relating to the suspect, the offence, the investigation, material subject to examination, outstanding evidence, victims and witnesses.
It should also address the Code Test, i.e. the reasons why both the evidential and public interest stages of the Full Code Test are met. This is significant if a pro active strategy is employed by the defence. The obligation upon the police to address this issue means that they have to consider all points made by the defence during the course of ‘pre charge engagement’ or contained within written representations against charge.
The officer will have to address the issue of whether in their view there is a ‘realistic prospect of a conviction’.
The same obligation applies in cases where the defence contend that a prosecution is not in the public interest
Information relating to a suspect
- language spoken, relevant dialect, whether interpreter required;
- potential mental health issues;
- the date and time of arrest;
- status: custody, bail, or otherwise;
- information in support of any remand application;
- current or pending proceedings;
- relevant antecedents;
- any relevant orders to be sought on conviction.
Information relating to the offence(s)
- case type: e.g.whether Domestic Abuse or Hate Crime
- proposed charge(s);
- Statutory Time Limits;
- whether A-G’s Consent; DPP’s Consent required;
- factual summary;
- likely issues;
There are a number of key pieces of information that focus directly upon the defence case and weaknesses in the prosecution case.
- understanding of the defence case, including any explanation offered suspect, ‘whether in formal interview, defence statement or otherwise’, (inevitably, any explanation offered during the course of ‘pre-charge engagement’ simply cannot be ignored);
- details of the questions asked of suspect during interview under caution
- if suspect was not interviewed, reasons for that decision;
- analysis of strengths and weaknesses the case (again, defence representations as to weaknesses cannot be ignore);
- anticipated plea;
- whether a s.70 POCA committal should be sought in potential confiscation cases
Information relating to the Investigation
- Significantly, the information must detail ‘the reasonable lines of inquiry already conducted, including those that may assist the defence’, and results of those inquiries. This is important because the greater the level of ‘pre charge engagement’, the better understanding the investigator will have of the defence case and relevant lines of inquiry;
- the lines of inquiry which will not be pursued and the rationale for that decision (again, high level pre charge engagement may make certain lines of enquiry difficult to ignore);
- outstanding (reasonable) lines of inquiry which remain outstanding, together with timescales and an objective assessment of impact of those inquiries on a charging decision to charge;
- explanation for delay between the offence, investigation and referral to the CPS;
- status of linked offenders:
- pending arrests/interviews;
- already charged, and their status;
- dealt with by Out of Court Disposal;
- subject to no action; and
- relevant account or explanation given, (again, ‘pre charge engagement’ has the potential to be significant here);
- status of linked investigation(s);
- whether any sources of information require protection;
- details of any action taken in relation to asset recovery.
Material subject to examination
There may have been examination of; mobile communication devices, social media accounts, audio-visual evidence or third party material. If this has happened, there must be an explanation of;
- the purpose and impact of any examination;
- why examination is deemed reasonable;
- whether consent obtained;
- the examination strategy (including parameters of examination of CCTV, ANPR, use of cell site);
- extent of download or copying, including key word setting or date/time parameters;
- if device(s)/material returned without examination, or an account not further examined, the justification;
- whether the suspect/ representative asked for/provided key word searches.
Outstanding evidence
Certain types of evidential material may not be immediately available at the point of a charging decision request:
- audio-visual evidence
- bad character evidence
- communications evidence
- forensic evidence
- identification evidence
- medical evidence
Where any of the above are outstanding the information must the nature of that material, the target date for availability, issues that may affect availability.
Victims and witnesses
The information must address;
- whether a victim/witness has failed to engage investigation and
- their relevance to the case.
- where there is a repeat victim,
- where any victim or witness is vulnerable or intimidated victim or witness is,
- basis of eligibility for special measure; and a special measures assessment,
- other supporting and/or protective measures proposed for any victims or witnesses.
- where the main language spoken is other than English,any interpretation requirement and any relevant dialect
- whether Victim Personal Statement has been offered and current position:
Other considerations
The information must address;
- matters of local or public interest;
- other confidential information;
- views of the investigating officer;
- other issues on which decision of prosecutor is sought.
Never has it been more important for the defence lawyer engaged in pre-charge representation to fully understand the requirements upon investigating officers during the investigation stage of a case.
Article written by Matthew Claughton
If you would like to discuss how we can proactively assist you in relation to your case at a pre-charge stage, contact Ruth Peters or Matthew Claughton by telephone on 0161 834 1515, by email to info@olliers.com or complete the form below and we will contact you.
