The notion of pre-charge engagement between investigators and the defence is not new. The pre-charge 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. However, what is the legal basis for such a front footed approach during the investigation stage of a case?
2020 sees the move towards greater levels of pre-charge engagement between investigators (and prosecutors) and the defence (see Government’s Response to the Attorney General’s Guidelines on Disclosure and CPIA 1996 Code of Practice Consultation; a summary of consultation responses September 2020).
If there is a game changer in the approach to pre-charge engagement it comes in at Annex B to the Attorney General’s Guidelines on Disclosure 2013 (as amended 2018). Annex B, for the first time formally recognises the concept of ‘pre-charge engagement.’ The new Guidelines were published in draft form on 2nd October 2020 and will debated in Parliament this week.
The concept of pre-charge engagement is not new, it is encouraged by the Code for Crown Prosecutors and it is recognised that it may have an impact in decisions as to charge or not (the Code for Crown Prosecutors para 3.4).
Attorney General’s Review of the efficiency and effectiveness of disclosure in the criminal justice system (2018)
The Attorney General’s Review acknowledged that; there is a “gap pre-charge where;
(i) If the defence knew more about prosecuting cases they might volunteer more information, and
(ii) If the investigator and prosecutor knew about that information it would help them to identify new lines of enquiry, particularly in relation to where exculpatory material might be on a digital device or social media”.
Consultation February 2020
Annex B first appeared as a proposed annex to the Guidelines in the Consultation. The response to the consultation, ‘The Government’s Response to the Attorney General’s Guidelines on Disclosure and CPIA 1996 Code of Practice Consultation; a summary of consultation responses September 2020’ focuses specifically upon pre-charge engagement at questions 9 and 10 of the consultation. Significantly, the response acknowledges a lack of legal aid available at this stage of the process and the Ministry of Justice intends to consult on this point.
The consultation makes a number of amendments to Annex B. Failure to engage pre-charge should not count against a defendant (paras 3 and 7 of Annex B). The defence should not use pre-charge engagement as a fishing exercise into the personal life and devices of a complainant. Significantly, in answer to question 10 of the consultation, the government has removed the restriction in Annex B, which suggests that pre-charge engagement would only apply in few cases. Annex B is also updated, so that it is still available to a suspect who has exercised their right to remain silent in interview.
Annex B Pre-charge engagement – in detail
Pre-charge engagement refers to any voluntary engagement between parties to an investigation after the first interview under caution. It is a voluntary process and can be terminated at any time.
It may involve;
- Giving a suspect an opportunity to comment on further lines of enquiry
- Establishing whether a suspect can identify other lines of enquiry
- Asking a suspect whether they can provide access to digital material
- Discussing ways to overcome barriers to obtaining evidence
- Agreeing key word searches of digital material
- Obtaining a suspect’s consent to access medical records
- A suspect identifying and providing details of potential witnesses
- Clarifying whether expert or forensic evidence is agreed
The above list is not exhaustive.
Pre-charge engagement is encouraged by the Code for Crown Prosecutors and significantly, Annex B states that it “may impact decisions as to charge”.
Pre-charge engagement is not appropriate in every case. It should not be a replacement for a further interview under caution. It should not be instigated in circumstances where the investigator and prosecutor may seek to rely on the contents of answers of evidence at trial.
A no comment interview does not preclude the possibility of pre-charge engagement.
Benefits of pre-charge engagement as identified as Annex B are as follows;
- A suspect who maintains their innocence will be aided by the earlier identification of lines of enquiry, which point away from the suspect or towards another suspect.
- Pre-charge engagement can help inform the prosecutors charging decision – in other words avoiding a case being charged that would otherwise be stopped later.
- Issues and disputes could be narrowed so unnecessary enquiries can be avoided.
- Early resolution of a case reduces anxiety for suspects and complainants.
- Costs are reduced.
Who may initiate pre-charge engagement?
It may be appropriate for the investigator, the prosecutor, the suspect’s representative or even an unrepresented suspect to initiate pre-charge engagement.
Dialogue between Prosecutor and Investigator
If an investigator refers a case to a prosecutor, they should confirm whether pre-charge engagement has taken place or whether it would benefit a case.
Significantly, prosecutors and investigators should be alert to the use of pre-charge engagement as a means to frustrate or delay an investigation. Annex B states that engagement should not provide the suspect with an opportunity to make unfounded allegations against a complainant.
Information on pre-charge engagement
The investigator should provide information on pre-charge engagement to a suspect or their representative before or after an interview. The process should be explained in simple terms orally or in writing. The explanation may include the aims and benefits of the process, any relevant time scales and a police point of contact to make future representations. At the point of the consultation response there is no legal aid for pre-charge engagement.
Conducting pre-charge engagement
This may take place face to face or by correspondence. It need not always be a formal process. In some circumstances, a more formal mechanism may be required.
Disclosure during pre-charge engagement
Statutes regarding disclosure rules will not be engaged. However, the disclosure of unused material must be considered as part of the pre-charge engagement process, ensuring that discussions are fair and the suspect is not misled, as to the strength of the prosecution case.
Further interviews under caution
Before, during and after pre-charge engagement, the investigator/prosecutor should consider whether further material, additional to that contained in the summary of the allegation should be disclosed to a suspect. The investigator/prosecutor should at all stages bear in mind the need to cease pre-charge engagement and put further evidence to a suspect in the form of an interview under caution.
Recording discussions relating to pre-charge engagement
Recording the discussions, a full written, signed record of pre-charge engagement discussions should be made. The prosecutor and/or investigator should record every key action involved in the process. A record should be made of all of the information provided by a suspect’s representative. The prosecutor may be required to disclose information provided by a suspect’s representatives to another party (for example subsequent defendant). A record should also be made of information and material provided to a suspect’s representative. The prosecutor and investigator should ensure that records of pre-charge engagement are provided to each other.
Formal recognition of pre-charge engagement is long overdue. Procedures may not yet be in place for formal notices to suspects, advising of the availability of pre-charge engagement. No police training has taken place. Unsurprisingly, there is no legal aid yet in place for pre-charge engagement. However, the formal recognition in Annex B of pre-charge engagement means that it is now part of the process and its significance will only increase in the coming months and years.
Article written by James Claughton.
Contact Olliers pre-charge engagement team
If you would like to discuss how Olliers’ proactive strategic approach can help you if you are under investigation for a criminal offence please contact Ruth Peters or Matthew Claughton on 0161 834 1515 or complete the web enquiry form below.