In this article, we consider whether an unintended consequence of recent guidelines on charging and pre-charge engagement mean that weak cases are taking longer to resolve. Are investigators focusing too much on the requirements of the Director of Public Prosecutions Guidance on Charging 2020, whilst losing sight of the ‘Charging Standard’ which allows for early decision making even before every single line of enquiry is investigated.
We also consider what, if anything, can be done to speed up the decision making process where the police case is weak.
At Olliers, we have, for many years looked to engage with investigators from the outset of an investigation.
Our strategy is to bring the investigation to an early conclusion with successful representations against charge. We do this by arguing either that there is not a ‘realistic prospect of a conviction’ or that a prosecution is not in the ‘public interest’, (as required by the ‘Charging Standard’ contained in the Code for Crown Prosecutors).
But what happens in the early stage of an investigation when the defence provide investigators with material that completely rebuts key elements of a prosecution case? Frequently, the defence see the investigation continue for weeks, months and sometimes longer before a case is dropped.
31st December 2020
31st December 2020 was a significant date for criminal lawyers. It heralded the publication of both the Attorney General’s Guidelines on Disclosure (AG’s Disclosure Guidelines) and the Director of Public Prosecution’s Guidance on Charging (DPP’s Charging Guidance).
At Annex B of the AG’S Disclosure Guidelines, for the first time, we saw the formal recognition of a process of ‘pre-charge engagement’, whereby proactive defence lawyers could formally engage with investigators in what appeared to be a welcome addition to the criminal justice process.
Under the DPP’s Charging Guidance, material submitted by the police to the Crown Prosecution Service must come through the digital interface, in accordance with standardised procedures (‘the National File Standard’).
The Charging Guidance contains a huge amount of material in its annexes. Annex 3 details material that should be contained in a request for a charging decision. Annex 4 details the information that needs to be contained in a request for a charging decision. At Annex 5 we see the tabular form requirements for each stage set out. We then have 25 pages of Thematic Guidance at Annex 7.
This uniformity should ensure that if the case goes to Court, the prosecution, the Court and the defence all have sufficient material and information that is proportionate and necessary for the charging decision, case management and the ongoing court proceedings.
It is all hugely detailed and if investigators get it right first time there will be no need for duplication of effort at a later stage. Indeed, in the run up to 31st December 2020 there was a lot of talk about ‘getting it right first time’ and ensuring that the right people were charged with the right offences every time.
Is there a downside?
There certainly seems to be.
Increasingly, at Olliers, it appears that there are more and more occasions when investigators and/or prosecutors cannot see the wood for the trees. Cases which are inherently weak (especially when rebuttal material has been provided by the defence) are being dealt with on a point by point basis, when sometimes it is clear from an early stage that they are not going to be prosecuted because there is not a ‘realistic prospect of a conviction’, as required by the Charging Standard (contained in the Code for Crown Prosecutors).
Is it the case that investigators are so hamstrung by the procedural requirements of the DPP’s Charging Guidance and its numerous annexes that they are failing to apply the more established Charging Standard and bring weak cases to an early conclusion?
Weak cases are continuing for an unnecessary length of time to the huge detriment of innocent suspects, complainants, police resources and the public purse. One cannot help but think that the police are over focusing on complete compliance with the DPP’s Guidance addressing each and every point before submitting a file to the Crown Prosecution Service.
At Olliers, we have cases that we feel that within a couple of weeks of our client’s initial arrest and interview, we have made sufficient enquiries to blow the prosecution case out of the water. These are cases where based on our knowledge, there is absolutely no way that our client could be convicted let alone charged. And yet, the ordeal continues.
What can be done to speed up decision making in weak cases?
At Olliers, we do not accept unnecessary delay in an investigation in which our client’s life is placed on hold.
The Charging Standard is a very fair test for whether a case should be prosecuted. The DPP’S Guidance is excellent in terms of ensuring that the prosecution files comply with uniform standards when a case is to be prosecuted. The current problem appears to be the unintended consequence of too much focus upon compliance with all cases, even the weak cases.
Where very strong representations have been made on behalf of a suspect, where it has been argued that the material provided is so powerful that a complainant simply cannot be regarded as a witness of truth, then investigators should be taken to task as to why the investigation continues.
Emphasis should be placed upon the detrimental impact the investigation is having upon a particular suspect – for example on studies, career, family life, mental and physical health.
Consider the following;
1. An investigator should be reminded that under paragraph 4.3 of the Code for Crown Prosecutors which states;
‘4.3. The Full Code Test should be applied: a) when all outstanding reasonable lines of inquiry have been pursued; or b) prior to the investigation being completed, if the prosecutor is satisfied that any further evidence or material is unlikely to affect the application of the Full Code Test, whether in favour of or against a prosecution.’
In other words, if material provided by the defence is sufficient for a decision not to prosecute, then such a decision should be made even if every single enquiry has not been bottomed out. The investigator might be asked to respond to this point.
2. In asking the investigator to respond to observations on weaknesses in the prosecution case reference can also be made to paragraph 5.3 DPPs Guidance on Charging 2020 which states;
‘The Code for Crown Prosecutors clarifies that a realistic prospect of conviction means “an objective, impartial and reasonable jury, bench of magistrates or a judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.”
Prosecutors and police decision makers must therefore be in a position to explain why it “is more likely than not” that the court will convict.’
It would be open to ask how, bearing in mind the material already provided, it is conceivable that it is ‘more likely than not’ that a Court would convict.
3. It would normally assist to add representations under paragraph 3.2 DPPs Guidance on Charging 2020
‘Has a prosecutor considered whether this is a case which should be stopped quickly in accordance with paragraph 3.2 DPP’S Guidance on Charging 2020 on the basis that it does not meet the evidential stage of the Full Code Test and cannot be strengthened by further investigation?’
4. An additional observation would be to draw the prosecutor’s attention to paragraph 4.25 of DPPs Guidance on Charging 2020 which requires matters to be dealt with expeditiously
‘Prosecutors will be proactive in identifying and, where possible, seeking to rectify evidential weaknesses, and in bringing to an early conclusion those cases that cannot be strengthened by further investigation, or where the public interest clearly does not require a prosecution’
Without seeking to offend an investigator, they may need to be reminded of these provisions and the fact that they come from the very same Guidance that may be causing the delay in the investigation.
A number of additional questions may be asked of the investigator.
5. Request under paragraph 3.1 DPPs Guidance on Charging 2020
Has consideration been given by the police as to whether the case meets the relevant criteria for referral to the CPS for a charging decision (as per paragraph 3.1 of the DPP’S Guidance on Charging 2020)?
This can be referenced alongside the representations made thus far about weaknesses in the case.
6. Confirmation of whether paragraph 7.8 DPPs Guidance on Charging 2020 request has been made
‘Has a formal request for advice been made to the CPS via the digital interface in accordance with paragraph 7.8 DPPs Guidance on Charging 2020’
7. Confirmation of whether paragraph 7.9 DPPs Guidance on Charging 2020 request has been made
Has a formal request for a charging decision been made to the CPS via the digital interface in accordance with paragraph 7.9 DPPs Guidance on Charging 2020
8. Drawing to the attention paragraph 7.11 DPPs Guidance on Charging 2020 which states;
‘Where, following early advice and further investigation, the police are of the opinion that there is no realistic prospect of conviction on evidential grounds, the police will inform the CPS of this decision. The responsibility for the decision to take no further action on evidential grounds will lie with the police. If the evidential stage is met in respect of an offence which must be referred to the CPS for a charging decision, the case must be so referred even if the police propose taking no further action on public interest grounds’
9. It may also be helpful to draw attention of police to impact this investigation might be having upon all concerned the including the complainant
10. Finally, it may be pertinent to ask the police to justify ongoing delay by setting out in general terms what enquiries remain outstanding how such enquiries might materially affect a charging decision and a time frame for such enquiries
Article written by Matthew Claughton
Matthew is often asked to act for clients during the investigation stage of the criminal process, and has a reputation for dealing with crisis management focusing not only on avoiding a criminal charge but also minimising the negative consequences of an investigation, whatever its nature.
The Olliers team is known for our pro-active approach to representation of individuals under investigation. If you or someone you know is under criminal investigation or facing prosecution please contact us by telephone on 0161 8341515, by email to email@example.com or by completing the form below.