Written 18th September 2023 by Toby Wilbraham
In this artice, we will look at 2 recent cases we dealt with that illustrate how effective pre-charge intervention can be.Toby Wilbraham, is Head of Olliers Pre-Charge Department and is responsible for our internal accreditation scheme for criminal defence lawyers specialising in pre -charge work. 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.
Case 1 – Mr XMr X faced a number of allegations relating to the dysfunctional relationship he had with his partner. He was arrested and interviewed for allegations of harassment, assault and sexual assault. He came to us after having already been interviewed by the Police, represented by a duty solicitor and having made no comment to the allegations in interview.
What we didWe took a detailed statement from the client going into chronological detail about his relationship with his partner. From the statement it appeared that the relationship started off well, but deteriorated after around a month. It seemed that the complainant was quite demanding, insisting that he paid for all meals, drinks and bought her clothes. When they moved in together, against the advice of his family, he had amassed a significant debt buying items to furnish the property. Although she had agreed to split the rent, she subsequently failed to do so. The relationship ended with an argument after which they split. He stated that the complaint followed a dispute over money she promised to pay then failed to do so. We obtained a number of witness statements from friends and family. These statements corroborated his account. We were able to get evidence of an injury he received after stating that she had assaulted him during a previous incident. The statements suggested that his character had changed since he was in a relationship with the complainant and it appeared to friends and family that his partner had been coercive and controlling towards him. We were able to obtain character references that showed that the client was a genuinely nice person that prior to the relationship had been quite outgoing and sociable. After seeing the complainant, they confirmed he had been less sociable, more isolated and had lost weight. We were able to obtain and filter communication between the complainant and client (both WhatsApp and text messages). We used these to confirm that there had been a discussion about what was owed by the complainant after the relationship ended, when she should have paid, and that she didn’t pay. Subsequently she made a complainant to the Police which we could suggest was malicious and due to the argument over monies owed. We compiled all the above information into pre-charge representations that we sent to the Crown Prosecution Service (CPS) when the Police submitted their file for a charging decision. Having seen the wealth of material we had obtained the CPS did not proceed with the case, acknowledging that there was no realistic prospect of conviction.
What would have happened without our helpHad we not intervened the Police would have submitted a file to the CPS with a statement from the complainant and information that the client had not provided an account in interview. The no comment interview is problematic for 2 reasons. Firstly, he does not appear to deny the matter and provides no explanation as to what happened. Secondly at court, the court could draw an adverse inference from his silence. It is likely that the case would have been prosecuted to court in these circumstances.
Benefits of Pre-Charge InterventionThe pre-charge work we undertook on the case avoided the client being prosecuted for the offence. This saved the client considerable stress and also the cost of defending himself at court which would have been much more than the cost of the pre-charge work. In addition, it avoids there being any record of him being charged for the offence which would have impacted his DBS record and caused problems for him applying for and getting certain jobs (even if he was acquitted at court). The pre-charge work was hugely beneficial to him in this case.
Case feedback“Following an unexpected allegation, Toby and his team took on my case. As someone unfamiliar with the legal process, Toby’s calm, friendly but professional approach was invaluable in settling my nerves, explaining the process and options available and dispelling any misconceptions I had about the legal process. He offered honest and measured advice through objectively assessing the strengths and weaknesses of the case which allowed us to make a well planned strategy to help progress my case towards the desired outcome. Toby was always available and responsive, even for small queries. The matter was resolved without charge, and without Toby’s expert advice and thoughtful engagement with the police, I do not believe the matter would’ve been resolved so quickly and with no impact to my personal or professional life. Simply, for anyone finding themselves in a similar situation I cannot recommend Toby and his team highly enough.”
Case 2 – Mr YMr Y was due to be interviewed in relation to an allegation of assault relating to his ex-partner. We were fortunate to be instructed at an early stage so we were able to deal with the interview. It was alleged that during an argument one night the client had strangled the complainant at her address. It was further suggested he had assaulted her on a couple of other occasions. The evidence disclosed in advance of the interview was a statement that she had provided to the Police. We were aware, from the client, that she had likely recorded him on the telephone making an admission to the allegation, though he stated he had said this to appease her due to constant pressure she had put him under.
What we didPrior to the interview we were able to take detailed instructions from the client. It became apparent that the complainant had mental health issues as she had informed the client that she had a personality disorder when they commenced the relationship and had self-harmed throughout it. It also became clear that she was unhappy when he had broken up with her and made attempts to get back into a relationship with him. The client had found the relationship so detrimental to his own mental health that he sought assistance from a counsellor. We compiled evidence of everything she had done in advance of the interview. We also took statements from witnesses who had witnessed her unusual behaviour. We then attended the interview with the client and provided a detailed statement supported by the evidence we had obtained in advance. We then liaised with the investigating officer under the Pre-Charge Investigation protocol. In accordance with this we made 3 distinct representations: Firstly, we provided more material to the officer including witness statements and evidence that corroborated the clients account and character references that showed he was a credible witness. We provided material including messages that suggested that the complainant wasn’t a credible witness. Secondly we suggested reasonable lines of enquiry that the officer should undertake as part of the investigation that would assist the client. Thirdly we requested material be disclosed by the Police including previous accounts given by the complainant which we believed would show she was inconsistent and therefore less credible a witness. Once the Police received the material, they considered whether the case crossed the evidential threshold had not been passed and took no further action.
What would have happened without our helpThe Police had an account from the complainant and an apparent admission to the offence from the client. Usually that evidence would cross the evidential threshold and a case like this would normally be prosecuted to court even if it had been denied in interview.
Benefits of Pre-Charge WorkThe pre-charge engagement we undertook reinforced the account that the client had provided in interview. The material we provided corroborated his account, showed he was a credible witness and undermined the complainant’s credibility. It provided material that suggested that the reason why the client had made an admission was to appease the complainant due to the coercive control she had over him. Again, the client avoided being charged and the impact this would have on his future employment prospects.
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Toby is a highly experienced solicitor having been at Olliers for in excess of 20 years. He works as a litigator as well as an advocate in the Magistrates’ Court, Crown Court and Court of Appeal. Due to his experience he also advises clients, who were initially represented by other firms, as to whether they could successfully appeal the result of their cases.