Olliers’ most recent signing, former Senior Crown Prosecutor Anne-Marie Nicholls, offers her perspective on pre-charge engagement during the investigation stage of a criminal case

Anne-Marie Nicholls recently joined Olliers as a Senior Associate having been a Senior Crown Prosecutor at the Crown Prosecution Service.  She joined the CPS in 2004 and most recently spent seven years as a specialist prosecutor with the Rape and Sexual Offences Unit (RASSO).  Anne-Marie was also the CPS Branch ‘area lead’ on cases involving domestic violence for 10 years and began working as a pre-charge lawyer in 2006 when the charging scheme initially commenced. Anne-Marie has 17 years’ experience of pre-charge advice and preparation and extensive knowledge of the process from the prosecution perspective. Of the Olliers team of 25 or so defence solicitors, three are former crown prosecutors. This brings an extra dimension to the level of service the specialist team at Olliers can provide. Here Anne-Marie answers some of the questions our lawyers are most frequently asked.

What happens when the police first send a pre-charge file to the prosecution?

When a file is first sent by the police to the Crown Prosecution Service it may be relatively brief and require further information for a prosecutor to make a charging decision.  It is rare that the file at first opportunity will be ready to make a charging decision and often the prosecution will need to request additional material, lines of enquiry or investigative work to be undertaken by the police.

What is a ‘charging decision’?

Essentially a charging decision is a decision made by a reviewing lawyer whether or not to prosecute an individual.  A prosecutor needs to consider whether or not to bring charges based on the evidence that they have. If further work is needed to make a decision this can still lead to No Further Action ultimately. If charges are to be brought then consideration must be given to what are the most appropriate charges and what can be proved from an evidential prospective. Although prosecutors work to specific guidance when drafting charges to ensure consistency, there can be an element of subjectivity involved in the process.  Certain types of allegations, for example complex, historic sexual abuse require more of a depth of experience and time to come to the right outcome. This is usually refined at the stage of completing the indictment for the Court so there can be some room for manoeuvre with the charges pre-court. It would be at this stage that representations from the defence would be most useful but in reality are surprisingly rare.

What is the Charging Standard?

The Code for Crown Prosecutors details the general principles for Crown Prosecutors to abide by during decision making on cases. To charge a suspect or to offer an alternative such as an out of court disposal, the CPS consider the two stage test (known as the ‘Charging Standard’) as follows:

• Is there a realistic prospect of conviction? and
• Is it in the public interest to prosecute?

What does it mean when a reviewing lawyer is asked for ‘early advice’?

Early advice is when the police send a file to the Crown Prosecution Service in the initial stages of the investigation for advice as to how or if to progress the allegation.  This does not necessarily mean that it is an evidentially strong case; sometimes the police may send weak a file to the CPS for where they feel that it should result in an early decision of no further action. The police may send files for early advice in serious matters when they require advice as to how to direct their investigation.  This can be in serious/complicated cases; for example, police operations involving multiple defendants.  If an officer’s view is that s/he requires input at an early stage, then a supervising officer may arrange for an appointment with a lawyer for advice. The Crown Prosecution Service encourage early advice in such matters. The Police have direct contact with complainants and therefore may be much more influenced by that than a CPS reviewing lawyer, more removed from the allegation. Early advice can often be a positive from a defendant’s point of view as the police may feel a case should result in no further action at an early stage; but when it is a serious matter they will want to ensure they are correct in their view of the case and early advice from the Crown Prosecution Service will assist.

How have the police’s view towards pre-charge engagement changed since the implementation of the Attorney General’s Guidelines on Disclosure in 2020

It is apparent that training has been provided to police officers; most specifically to senior police officers who are more familiar with pre-charge engagement at an early stage. However, some officers have not initially appreciated the position from a defence perspective; this can vary between force divisions. My experience has been that the majority of police officers act in good faith and their attitude shouldn’t be seen as cynical; they are naturally more concerned to manage the risk to a complainant than to protect the rights of the defendant which although is contrary to their role, should be a consideration. We have an adversarial system which involves opposing parties presenting their most convincing arguments to a Judge or jury; in such a system the role of the defence lawyer is as important as that of the prosecution. If the prosecution case is weak it is in the interests of all concerned to engage at Pre-charge stage to avoid an unjust outcome or reduce the burden on the system; it is with this in mind that training has been given to police officers in the pre charge engagement with the defence.

Does the Crown Prosecution Service welcome pre-charge engagement?

Prosecutors most definitely welcome objective input from the defence. The days of an ambush defence have long gone and certainly the view of the Crown Prosecution Service is to frontload their preparation and engagement.  Since the Attorney Generals Guidelines on Disclosure were published it will certainly assist all parties if material is brought to the attention of a reviewing lawyer at an early stage. Certainly once prosecution is instigated the CPS expect effective interaction prior to a Pre-Trial and Preparation Hearing in court in serious cases; and it is extremely beneficial to have any material brought to the prosecution’s attention prior to a charging decision is reached.

Does the prosecution find favour with the Olliers’ proactive approach to pre charge work?

Yes, most definitely, a proactive pre-charge approach is welcomed by the prosecution. Any reviewing lawyer wants to ensure that the right people are prosecuted in the right cases and where there is material that illustrates there is not a realistic prospect of conviction and undermines the prosecution case or strengthens the defence case then this should be brought to the attention of the reviewing lawyer at an early stage. Where the defence raise reasonable lines of investigation then the prosecution will always welcome this and are likely to direct that these lines of investigation are investigated. Of course this can’t be a fishing expedition. Any line of enquiry relating to sensitive material needs to justify the rationale for the investigative work to be undertaken, specify specific dates and specify exactly what it is likely may be achieved from obtaining such material. In a similar way to blanket requests on a defence statement, any blanket request in terms of pre-charge investigation are unlikely to assist. For example, it can often assist where the defence have access to messaging that may have been deleted from the complainant’s phone. Whilst a high tech unit may be aware that such messages have been deleted when examining a complainant’s phone, the police may undertake a download themselves and not be aware. If the defence are in possession of this material and they feel it assists their case, then it would be hugely beneficial for them to draw this to the attention of the police/prosecution.

What is the Olliers’ approach to pre-charge engagement?

At Olliers we feel the best strategy is for us to get a decision making lawyer to imagine the case before a jury – that is the best way of persuading a lawyer that there is not a realistic prospect of conviction. At Olliers we advocate a pro-active approach to pre-charge engagement so that a decision making crown prosecutor fully understands the defence case.  This can goes as far as providing defence witness statements and even character witnesses during the pre-charge stage of a case. Our end game when making ‘representations against charge’ is for the prosecuting lawyer to conclude that there is not a ‘realistic prospect of a conviction’, that the evidential test is not met and therefore ‘no further action’ should be taken. We are proud of the consistently high standards and our meticulous approach to pre-charge engagement and representations against charge. It is this that sets us apart and having the experience of former senior crown prosecutors in our team will only serve to consolidate our position as market leaders.