What is pre-charge engagement?

so today the Olliers pre-charge team are going to be discussing defending criminal investigations at the pre-charge stage particularly within the context of sexual allegations so what I’d like to do first is is introduce the panel and start with Anne-Marie who joined us several months ago now Anne-Marie is a very experienced crime prosecutor many years experience with the RASSO unit which as we know is the rape and serious sexual offences unit and significant experience prior to that as a lead in relation to domestic abuse and you’ve been involved in pre-charged decision making for in excess of 15 years years whilst at the crown prosecution service and Anne-Marie brings to three the number of former Crown prosecutors at Olliers which really does add another dimension to the level of expertise Olliers so well done for that Nicola Bruce trained with Olliers but then spent 17 or 18 years at the crown prosecution service and made a comeback about a year ago and Nicola also has substantial experience dealing with cases during the pre-charge stage and also within the RASSO unit and has had an extremely impressive record of Defending pre-charge cases in the 12 months or so since rejoining us Toby Wilbraham has has been with us for well in excess of 25 years he is our Academy coordinator he is responsible for delivering a program and accreditation for pre-charge engagement with Olliers members of Staff and he has a huge level of pre-charge experience possibly more than anyone in The Firm so I think that brings to head the introductions and and I’d like to start with my first question over to you Anne-Marie what happens when the police first send a file to the crown prosecution service. So initially it goes to our this the crown prosecution service admin team and they check that there’s certain Essentials there for a prosecutor to review if there aren’t It Gets Sent straight back to the police for example if the complainant video interview isn’t there then you would expect that to be there as the primary evidence and then when everything is satisfactory it will go to a prosecutor for review and what exactly does review me so then all the evidence is considered with a view to determining whether there is sufficient evidence on the case for the allegation to be made out if it’s not made out at that stage can it be built upon in order that we can progress the case and go forward okay and how often do the police get it right first time hardly ever yeah okay hardly ever there’s always more work to be done I think I may have charged a case on first submission once really yeah okay so we’re talking about charging and decision making maybe if I go over to Nicola what what is a charging decision a charging decision is the process and the and that a prosecutor has to go through to reach the decision as to whether or not to charge a case or alternatively consider other methods of disposal such as disposal for an out of Court disposal for such as a conditional caution or Community resolution or alternatively they could consider no further action at that point but it’s a stage where they will consider all the evidence and decide on the appropriate charges to meet the offending behavior and and reach that that decision by considering all the evidence available to them so just to clarify a charging decision isn’t a decision to charge not necessarily no it could be a decision to take no further action which is important for us and that’s where pre-charge engagement helps because we help to encourage that decision of taking no further action by revealing a lot of material that would undermine the prosecution case okay and the decision that’s made is made in accordance with the charging standard what is the charging standard so this charging standard is a is there are guidelines that the prosecution must follow when reaching a charging decision um and tests that they must follow there’s the code for Crown prosecutors and that sets out um that there must be a realistic Prospect of conviction and secondly that it must be in the public interest to charge a case and they must consider those two elements when deciding any case but that is also in addition to the attorney general guidelines on charging U which provides more advice and guidance on what the prosecution was considered and what the police must consider when they’re preparing a case and putting it forward to the CPS so it’s mainly those two tests that must be applied when reaching a decision as to whether or not to charge okay so I asked you Amar about when you get a file and that’s with a View to a decision being made on charge but sometimes you can get a file for early advice when will that situation arise it’s always been an option and it’s encouraged a lot more now um than it used to be it would be when perhaps the police are looking at a large operation or a particularly tricky case and they want some direction some guidance and some direction as to what inquiries um will strengthen the case or provide the best evidence also conversely um if the case is weak and if they don’t think that there is a prospect of a conviction but they prefer to put it before a crime prosecution lawyer to make that decision okay um for the last couple of years we’ve had the concept of pre-charge Engagement um perhaps um you can all consider how the police’s view towards pre-charge engagement has changed over the last couple of years Toby I don’t know if you want to start with that I’m not sure if their their approach has changed as such the the approach from police officers that certainly that I’ve dealt with just varies so so much across the scale uh and there’s two variable factors I think that come into play one is the region that the police work in themselves um most people think that the police are a unified force in the UK and they are to an extent as in they follow the same law and procedures but they apply them differently and so training and pre-charge engagement is different in certain regions than others I think there’s around 32 different police forces in the UK and some uh training in some regions is is a lot better than others for example Nottinghamshire are particularly good we’ve had cases there where you do an interview and at the end of the interview the police are quite proactive in giving pre-charge engagement forms and encouraging solicitors to to follow the pre uh charge engagement protocols uh and some of the regions we go to they don’t seem to want to engage at all uh and then applying across the regions to different police officers and different cases when you suggest pre-charge engagement to them because we’re allowed to suggest pre-charge engagement as much as the police are allowed to suggest it to us the response is variable as well down to the individual police officer and how they wish to approach it even in Nottinghamshire I guess if certain police officers will be more open to pre-charge engagement than others on a an individual level so there’s there’s no I don’t think there’s been any notable change since I started doing the work about three years ago till today but the approach from the individual officers and regions is variable across the board I think that’s the right answer the way to look at it okay now Amar you haven’t seen it nationally but you’ve seen it as a prosecutor um in one area over a period of a couple of years before joining Olliers do you have a view on that I think that Toby’s right I think that um it it does vary as much as the the the recent guidance tries to make it more uniform it does vary and I think if you’ve got a particularly um forward-looking leader within a a police division then it they would encourage it I’m thinking perhaps of Lancer I always found Lancashire to be very engaging perhaps more than greater Manchester but I would say that my experience this year perhaps with the training and the roll out of the of the Attorney General guidance has been that some police officers really have taken it on board and do welcome the engagement from the defense Nichol I know you’ve had great success with maybe close to 20 successful cases during the pre-charge stage of the case what’s your view on that I feel I feel it’s definitely improving and the majority of officers I engage with are really encouraging and it seems that they now appreciate the benefit they get from pre-charge engagement and defense disclosure because it and that it is ultimately helping them with their investigation we know police are under resourced and overworked and it’s preventing them from spending a lot time lot of time on an investigation where there’s a significant amount of material that undermines the the complainant so I agree that different areas different offices are more engaging and I have a come I have come across offices who weren’t even aware of pre-charge Engagement but in on a majority most officers are engaging and and seem to appreciate uh pre-charge engagement with us can can I just add something to that as well I think I think police officers traditionally see defense lawyers as um an obstruction to them progressing their investigation uh and I think that view still holds with with some police officers but the the whole purpose of pre-charge Engagement it’s not a one-way flow of material it’s a two-way flow it enables us to liaise with the police and request material for them and request reasonable lines of inquiry and other things but it also allows the police to request material from us which you know we can pass to them so we can assist them in what they want to do as well a good example is on kind of cases which involve it passwords codes to entry things like that we can we can help with that and other inquiries the police may have I had a case in Sheffield recently where we assisted the police to provide witness details to them to assist in their investigation which they they would not have got those witness details but for us having provided them to us now obviously you have to be careful what you disclose to the police because you don’t want to disclose anything that’s going to be problematic to your client but in that case the witness details that we provided were a benefit to both us and the police so it was it was a worthwhile exercise yeah okay okay now we’ve got the Attorney General’s guidelines on disclosure we’ve got pre-charge engagement which is part of that we’ve also got the dpp’s guidance on charging both came in a couple of years ago does this mean that investigations as a consequence are now taking longer Nicola I I don’t know that they are necessarily taking longer than they were before and my experience um in working with pre-charge engagement is that cases are coming to a conclusion quicker now because of the pre-charge engagement because of the disclosure of material investigations that would have gone on for two to three years are now being dropped and no further action taken in my cases between 6 to n months right so I would say there is a benefit and it has helped to speed up the process but I know there’s the other consequenc in that officers are having to gather more evidence and build a file to send to the CPS which could be adding a delay um to the full process once the case is referred to the CPS it will take longer yeah yeah my my other concern as well as those two points was in addition to that we’ve got to comply the police have to comply with the national charging standard National file National file standard um sorry and I I just wonder whether all the different eyes to dot te to cross meant that to some extent it was extremely prescriptive and if a case in circumstances where a case is taken a long time what do you think the defense should be doing maybe to speed up the process I think just to carry on doing what this firm seems to be doing which is extremely effective the um insight into what the defense case might be I think is helpful and historically it’s been quite antagonistic hasn’t it between the defense and the police so there’s a change in attitude and we have to try and encourage that I think if you’ve got a mutual respect yeah and a recognition that the fact that the police are underresourced yeah and they they quite often will do the best that they can yeah so we’ve already mentioned um the charging standard and the code for Crown prosecutors the application of the full test does that can that be made before every single piece of evidence has been gathered so it can yeah um sometimes there is evidence that you know will come and but you don’t need it to charge a case or or to or to NFA a case or to no further action yes yeah so you don’t always need absolutely everything on a file just the the ingredients to be able to prove or disprove the allegation so would it be useful to remind prosecutors that look from our perspective we feel you’ve got a decision enough evidence to make a decision to take no further action and you don’t necessarily be need need to be dotting every eye and Crossing every te you can make your decision in favor of our client now I think you can always push for that yeah yeah I think it’s also possible to get evidence from our perspective a defense perspective which really scope as a uh a prosecution quite early on in an investigation which case we can forward that to the police or to the CPS depending on where it’s at and that can bring the the crown prosecution service or who whoever is making the decision to make a decision of no further action at an earlier stage other effectively blowing the case out the water I mean I’ve had a few cases like that I’ve had about three where you find some significant evidence at an early stage uh and you send it over to either the police if it’s not gone to the CPS yet or the crown prosecution service and it and it it basically shows to whoever’s making the decision on the case that the likelihood of success is now nil because of this evidence and so it brings a decision to be made at an early stage it would have done otherwise okay so we’ve been talking about the police and the crown prosecution service but from the perspective of the crown prosecution service do you think that they welcome the concept and existence of pre-charge Engagement Oh yes most definitely I think as any public organisation especially at the moment they are extremely underresourced and heavily criticised by the media there are a lot of pressure groups especially for example violence against women who put pressure to bear on a prosecutor to charge a case I think if those kind of cases are going absolutely nowhere it’s got to be in the public interest for that to be an early consideration yeah absolutely could I ask a question to both ladies here as well please what I’m curious as myself as I’ve only ever been a defense lawyer is how What proportion of cases that come to a pre-charge decision with the CPS or charging decision with the CPS are defense representations made on those what percentage do you think as a whole um are represent representations made by the defence do you think what would you estimate from cases you dealt with I think it was be extremely low well what kind of percentage do you think cuz I less than 10% yeah cuz I eily I always estimate that it was about 95% that went to the CPS without defense representations but that was based on an estimate from my perspective would that sound that would probably be about right yes [Music] okay Toby given that you’re the architect of much of the Olliers pre-charge engagement style do you want to describe the Olliers approach to pre-charge engagement well always describe it in sort of three stages and we don’t always get involved in the first stage and the first stage for me is the the interview where somebody gets the opportunity to present their case to the police and the CPS so they can see what the defence account is now obviously depends what the case is and what the evidence is and the circumstances what gets put forward at the interview after the interview um there is the pre-charge engagement stage where we have an opportunity to liaise with the police officers who’s dealing with the case this is before it gets to the crown prosecution service so the way I approach the pre-charge engagement stage there’s three things I look at at that stage one is do we have any material that we can provide to the police that assists both our client and the police in the investigation so it can be a disclosure of I mean it can be anything it depends on the case I had a case recently where we sent uh some evidence in a controlling in coercion case which showed that the client’s wife went to the gym often had her own car things like that which undermine the suggestion of controlling coercive Behavior so we sent material to the police in that case the second thing we do which is probably the most important and is probably the most relevant to all types of cases is suggested reasonable lines of inquiry what we would ask the police to look at on behalf of the defendant as well as the complainant in the case because I suspect and I think this is the reality of the situation that most investigations led by the police are or although they’re not meant to be primarily focused on gaining evidence against the suspect to prosecute them absolutely however under the guidelines there is I think it’s section 17 of the pre-charge engagement guidelines says that investigators should be open to looking into material that’s not only against the suspect but looks at away from the suspect and that’s quite an important uh paragraph in the and that’s contained in the code for Crown prosecutors as well isn’t it yeah so we basically encourag the police to look at areas of investigation that would help a suspect which they might not otherwise have looked at in fact I would virtually guarantee they wouldn’t have looked at but for us raising them and thirdly we can make requests for disclosure though disclosure it’s a pre-charge stage is a very big gray area and although I ask for material I’m yet to receive any material for disclosure even though theoretically we can ask for it the third stage is pre-charge representations to the crown prosecution service this I have to state at this point though there’s there’s an initial threshold with the police at the investigation stage and if you do the pre-charge engagement successfully you can pretty much finalise an investigation before it gets the CPS stop it going to the stop it before it goes to the CPS yeah so the police have a basically a test to see whether there’s enough evidence for the case to even go to the CPS and if you are able to make representations in the pre-charge engagement the second stage that there isn’t sufficient evidence uh then it will die a death there and the police will indicate no no further action at that stage before it even gets to the CPS if it does go to the CPS we have the opportunity to make representations to the crown prosecution Service uh basically arguing that there isn’t a realistic Prospect of conviction in this particular case and it can be for a number of reasons but we make that argument or it could even include a public interest argument that even though there may be sufficient evidence it’s not in the public interest to prosecute this so we can make representations to them at that stage and as Anne-Marie’s already indicated it’s a small proportion of cases that defense make representations on but it has a really important effect of balancing out the evidence that the prosecution look at because if you envisage the 95% of cases that aren’t challenged by the defence it’s almost can be seen as a rubber stamp exercise with the with an overworked CPS overwork police officers CPS Crown prosecution service lawyer getting a file they’ve got loads of work stacking up on the computer system that they used under pressure to make decisions Polie recommend XYZ charges rubber stamp yes we’ll authorise those without really giving it the consideration it perhaps needs so I feel that with the representations at that stage it balances that out and they’re more inclined to look at that and think well hold on a minute they look at it more carefully they look at the defence representations and they’re less likely to prosecute than they would do normally I think I my personal view is that every case should have defence representations on it but that’s my personal opinion I think it bounces out it makes the system more fair and this the crown prosecution lawyers are making more informed decision on a case I think what you were saying earlier Matthew about how do you accelerate the process that’s got to be to to try and get the case decided before it goes to the crown prosecution service because then you know you’re going to be waiting a lot longer yeah with with the best will in the world there just isn’t the stuff can I come back to a question you asked earlier as well about the length of Investigations I think they have increased over the years but I think the reason for that is the electronic and digital equipment that they’re kind of obliged to look at in a lot of cases now especially kind of the domestic violence which is recently rebranded domestic abuse I believe cases where there’s a history between the complainant and the defendant and often that history is reflected in the communication they have between them on the devices Etc so the police are now more obliged to look into those and as we know because we work in this area uh just analyzing a device even with consent with passwords provided can take anything up to 18 months for one device which just lengthens the amount of time on the investigation horrendously but they’re obliged to look at it and often we won’t complain about that because there’s material on there that helps the defendant to and it really sets the context of the allegation showing the messaging and the kind of communication of relationship people had before the allegation was made so it is important yeah if you’ve got two people who know each other well there’s going to be reams of evidence there reams of digital material well I I had a case recently in another case in Sheffield recently where the police said they were going to look at the digital evidence between my client and his ex-girlfriend who was the complainant and they didn’t but I did I ended up getting 1,480 pages of digital material all compressed to go through which I then used obviously extracted the relev things for the defense case passed to the CPS and that material um led to him not being prosecuted for case I believe you otherwise would have been so important I have to say as well just one point with my cases that have been NFA so far they’ve all been NFA at the police before they’ve gone that’s fantastic before they’ve gone to the CPS and which was good for the client as well because it it been six to n months at that point and it avoids that extra delay of it going to the CPS and further time under investigation um so we talked about maybe 10% of cases got representations Toby estimated it was only 5% have got pre-charge engagement and and representations yeah do do you think that generally speaking the prosecution would like that figure to be higher first that’s first part of my question secondly they are therefore grateful for the input of the minority of firms that get involved in pre-charge engagement and representations against charge so that they’re grateful for the input from firms like Olliers I can only speak personally I suppose my experience is if if somebody at an early stage than I would have expected had given me some evidence that would undermine a complainant to the extent that that’s no longer a viable case then I’d be thinking well that’s great next case bring the next case on yeah out of all the other cases that were and there must be cost-saving implications there because you avoid all the expense of Prosecuting through to the magistrates and the Crown Court Barrister’s fees solicor fees and overloading the court system as well yeah absolutely I mean I think for a complainant it might not be the the outcome that the complainant wants but at least the ordeal is over for them for the for the client most definitely it is the outcome they want and the ordal is over earlier for the system you’re not taking somebody out of the system to spend literally hours or days pre-charge decisions on a serious sexual offence can take days um so yeah you’re freeing up some some time for a prosecutor to look at something else the charging decision is such a difficult decision to make for a prosecutor and even for the officer to decide to send it to the CPS but once they see that material that we disclose that pre-charge it kind of makes that decision easier because they can then see that the evidential test isn’t met because of the amount of material that would undermine the complainant so for the police quite often they can make the decision themselves but because it’s going to be an extremely unpopular one in that kind of situation they don’t want to so they will give it to a prosecutor to make the decision it seems to me that when we get it to a prosecutor the key feature is getting a crown prosecutor to look at the evidence and and then move forwards and imagine the case before a trial in the Crown Court and realize and that’s how they come to the conclusion we this this would be a not-guilty verdict because there is not a realistic Prospect of a conviction and that means from the defence perspective and what we try and Achieve at Olliers is the successful outcome pre-charge absolutely yeah I think I think that deals with the issues that that I wanted to to discuss today I don’t know if anyone else wants to contribute anymore but thanks for your contributions I think that’s been really helpful uh for anyone who’s been listening to this and yeah thank you thank you