Olliers’ pre-charge lawyers discuss pre-charge engagement during a criminal investigation

INTRODUCTION:

Matthew Claughton:

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 and start with Anne-Marie, who joined us several months ago. Now, Anne-Marie is a very experienced Crown Prosecutor.

Many years experience with the RASSO unit, which as we know, is the Rape and Serious Offences unit and has significant experience prior to that as a lead in relation to domestic abuse. And you’ve been involved in pre charge decision making for in excess of 15 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 at 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 re-joining us. Toby Wilbraham has been with us for well in excess of 25 years.

He is our Academy Co-ordinator, he is responsible for delivering a program and accreditation for pre-charge engagements 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 a head the introductions and I’d like to start with my first question.

Over to you Anne Marie.

Q. What happens when the police first send a file to the Crown Prosecution Service?

Anne-Marie: So initially it goes to our, 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. Then, when everything is satisfactory, it will go to a prosecutor for review.

Q. And what exactly does review mean?

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.

Q. Okay, how often do the police get it right first time?

Hardly ever. Yeah. Hardly ever. there’s always more work to be done. I think I may have charged a case on first submission once.

Matthew: Really? Yeah. Okay, so we’re talking about charging, and decision making. Maybe if I go over to Nicola.

Q. What, what is a charging decision?

Nicola Bruce: A charging decision is the process and the, and that a prosecutor has to go through to reach a 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, it’s a stage where they will consider all the evidence and decide on the appropriate charges to meet the offending behaviour and reach that decision by considering all the evidence available to them.

Matthew: So just to clarify, a charging decision isn’t a decision to charge?

Nicola: 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.

Matthew: Okay, and the decision that’s made is made in accordance with the charging standard.

Q. What is the charging standard?

Nicola: There are guidelines that the prosecution must follow when reaching a charging decision, and tests that they must follow. There’s the Code for Crown Prosecutors and that sets out 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, which provides more advice and guidance on what the prosecution must consider 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.

Matthew: Okay. So I asked you, Anne Marie, 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?

Anne-Marie: It’s always been an option. And it’s encouraged a lot more now, 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 enquiries, will strengthen the case or provide the best evidence.

Also, conversely 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 Crown Prosecution lawyer to make that decision.

Matthew: For the last couple of years, we’ve had the concept of pre-charge engagement. Perhaps, you can all consider …

Q. How the police’s view towards pre-charge engagement has changed over the last couple of years.

Matthew: Toby, I don’t know if you want to start with that.

Toby Wilbraham: I’m not sure if their approach has changed as such. The approach from police officers that certainly that I’ve dealt with just varies so much across the scale. And there’s two variable factors I think that come into play. One is the region that the police work in themselves.

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 training in some regions 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 follow the pre-charge engagement protocols.

And some of the regions we go to they don’t seem to want to engage at all. And then applying across the regions to different police officers in 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 would be more open to pre-charge engagement than others on a, on an individual level. So I don’t think there’s been any noticeable 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 and the way to look at it.

Matthew: Okay. Now, Anne-Marie, you haven’t seen it nationally, but you’ve seen it as a prosecutor in one area over a period of a couple of years before joining Olliers. Do you have a view on that?

Anne-Marie: I think that Toby’s right. I think that it does vary as much as the recent guidance tries to make it more uniform, it does vary, and I think if you’ve got a particularly, forward looking leader within a police division, then they would encourage it.

I’m thinking perhaps of Lancashire, I found, 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 rollout of the Attorney General guidance, has been that some police officers really have taken it on board and do welcome the engagement from the defence.

Matthew: Nicola, 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?

Nicola: 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 defence disclosure because it, and that is ultimately helping them with their investigation.

We know police are under resourced and overworked and it’s preventing them from spending a lot of time on an investigation where there’s a significant amount of material that undermines the complainant. So, I agree that different areas…different officers are more engaging and I have come across officers who weren’t even aware of pre-charge engagement, but in on a majority, most officers are engaging and seem to appreciate pre-charge engagement with us.

Toby: Can I just add something to that as well?

I think police officers traditionally see defence lawyers as an obstruction to them progressing their investigation. And I think that view still holds with some police officers, but 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, code to entry, we can help with things like that. We can help with that.

Another inquiry is the police 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 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 a worthwhile exercise.

Matthew: 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.

Q. Does this mean that investigations, as a consequence, are now taking longer?

Nicola: I don’t know that they are necessarily taking longer than they were before. And my experience 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 six to nine months. So I would say there is a benefit, and it has helped to speed up the process, but I know there’s the other consequence in that officers are having to gather more evidence and build a file to send to the CPS, which could be adding a delay up to the full process, once the case is referred to the CPS, it will take longer.

Matthew: 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 File Standard and I just wonder whether all the different i’s to dot t’s 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,

Q. what do you think the defence 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 insight into what the defence case might be, I think, is helpful.

And, historically, it’s been quite antagonistic, hasn’t it, between the defence 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, and a recognition of the fact that the police are under resourced, and they quite often will do the best that they can.

Matthew: So, we’ve already mentioned, the charging standard and the Code for Crown Prosecutors.

Q. The application of the full test can that be made before every single piece of evidence has been gathered?

Anne-Marie: So, it can, yeah. Sometimes there is evidence that you know will come, but you don’t need it to charge a case or to no further action (NFA) a case. So you don’t always need absolutely everything on a file just the ingredients to be able to prove or disprove the allegation.

Matthew: So would it be useful to remind prosecutors that look, from the perspective as Defence Lawyers, we feel you’ve got enough evidence to make a decision to take no further action. And you don’t necessarily be n need to be dotting every I and crossing every T. You can make your decision in favour of our client now.

Anne-Marie: I think you can always push for that.

Toby: I think it’s also possible to get evidence from our perspective, a defence perspective, which really scuppers a prosecution quite early on in an investigation, in which case we can forward that to the police or to the CPS, depending on where it’s at and that can bring the Crown Prosecution Service or whoever’s making the decision to make a decision of no further action.

Matthew: Effectively blowing the case out of the water.

Toby: 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. You send it over to either the police, if it’s not gone to the CPS yet, or the Crown Prosecution Service. And 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 earlier stage than it would have done otherwise.

Matthew: Okay. So, we’ve been talking about the police and the Crown Prosecution Service.

Q. From the perspective of the Crown Prosecution Service, do you think that they welcome the concept and existence of pre-charge engagement?

Anne-Marie: Most definitely. I think as any public organisation, especially at the moment, they are extremely under resourced 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.

Toby: Could I ask a question to both the ladies here as well, please? What I’m curious as myself, as I’ve only ever been a defence lawyer, is:

Q. What proportion of cases that come to a pre charge decision with the CPS or charging decision with the CPS are defence representations made on those?

What percentage do you think as a whole are representations made by the defence do you think? What would you estimate from cases you’ve dealt with?

Anne-Marie: I think it was a bit extremely low.

Toby: Well, what kind of percentage do you think?

Anne-Marie: Less than 10% easily.

Toby: Yeah, because I always estimated that it was about 95 percent that went to the CPS without defence representations, but that was based on an estimate from my perspective. Would that sound to be about right?

Anne-Marie: I think that would probably be about right, yes.

Matthew: 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?

Q. Describe the Olliers’ approach to pre-charge engagement

Toby: I 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 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, it depends what the case is, and what the evidence and the circumstances, what gets put forward at the interview. After the interview, 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 (CPS).

So, the way I approach the pre charge engagement stage, there’s three things I look 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 some evidence in a controlling and 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 and coercive behaviour. 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, although they’re not meant to be, primarily focused on gaining evidence against the suspect to prosecute them.

However, under the guidelines, there is I think it’s section 17 of the Pre-Charge Engagement Guidelines. It 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 paragraph in the guidelines.

Matthew: And that’s contained in the Code for Crown Prosecutors as well, isn’t it?

Toby: So we basically encourage the police to look at areas of investigation that would help a suspect, which they might not otherwise have looked at. And 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 to pre-charge stage is a very big grey 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 representation to the Crown Prosecution Service. 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 to the CPS. 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 at the second stage that there isn’t sufficient evidence, then it will die a death there, and the police will indicate 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, 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 has already indicated, it’s a small proportion of cases that defence 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 percent of cases that aren’t challenged by the defence, it’s almost can be seen as a rubber stamp exercise with an overworked CPS, overworked police officers, CPS, Crown Prosecution Service lawyer, getting a file. They’ve got loads of work stacking up on the computer system that they use under pressure to make decisions.

Please recommend X, Y, Z 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.

My personal view is that every case should have defence representations on it, but that’s my personal opinion. I think it balances out, it makes the system more fair, and the Crown Prosecution lawyers are making a more informed decision on a case.

Anne-Marie: I think what you were saying earlier, Matthew, about how do you accelerate the process. That’s got to be, 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 with the best will in the world there just isn’t the staff.

Toby: 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, et cetera. So the police are now more obliged to look into those. And as we know, because we work in this area, just analysing a device, even with consent, with passwords provided can take anything up to 18 months for one device, which 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, the relationship people have before the allegation was made. So it is important.

Anne-Marie: If you’ve got two people who know each other well, there’s going to be reams of evidence there, reams of digital material.

Toby: Well, I had a case recently, 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 relevant things for the defence case, passed to the CPS, and that material led to him not being prosecuted for a case I believe he otherwise would have been.

Nicola: So important. I have to say as well, just one point with my cases that have been NFA’d so far, they’ve all been NFA’d at the police before they’ve gone.

Matthew: That’s fantastic.

Nicola: Before they’ve gone to the CPS, which was good for the client as well because it’s been six to nine months at that point. point and it avoids that extra delay of it going to the CPS and further time under investigation.

Matthew: So we talked about maybe 10 percent of cases got representations. Toby estimated it was only 5 percent of got pre-charge engagement and representations.

Q. Do you, think that generally speaking, the prosecution would like that figure to be higher?

Firstly, I suppose 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.

Anne-Marie: I can only speak personally, I suppose. My experience is if somebody at an early stage then, um, I would have expected had given me some evidence that would undermine a complaint 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 out of all the other cases that were there.

Toby: 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, solicitor’s fees, and overloading the court system as well.

Anne-Marie: Yeah, absolutely. I mean, I think for a, for a complainant, it might not be the outcome that the complainant wants, but at least the ordeal is over for them, for the client, most definitely. It is the outcome they want and the ordeal is over, earlier. For the system, you’re not taking somebody out of the system to spend literally hours or days.

Pre-charged decisions on a serious sexual offence can take days. So, yeah, you’re freeing up some, some time for a prosecutor to look at something else.

Nicola: 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 at 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 their complainant.

Anne-Marie: 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.

Matthew: 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 then move forwards. And imagine the case before a trial in the Crown Court, and realise, and that’s how they come to the conclusion, 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.

Nicola: Absolutely.

Matthew: I think that deals with the issues that I wanted to discuss today. I don’t know if anyone else wants to contribute any more, but thanks for your contributions. I think that’s been really helpful for anyone who’s been listening to this and thank you.