Pre-charge engagement: an update

Matthew Claughton views the landscape 18 months on from the introduction of pre-charge engagement and the Director of Public Prosecutions Guidance on Charging 2020. The most effective criminal lawyer………. is the one who stops their client being charged in the first place. High profile advocacy is one thing but rather than headline grabbing acquittals in the Crown Court wouldn’t it be better for everyone if there had been no prosecution in the first instance. It means less anxiety and expense for those acquitted. It also means less suffering for complainants. It represents a saving to the taxpayer and it allows the system to focus on the cases that really should go before the courts.

So, what’s different about Olliers Solicitors?

At Olliers, we specialise in representing clients through during the investigation stage of a case. It is what sets us apart.  Our focus is on ‘pre-charge engagement’ and preventing prosecutions with successful representations against charge. We will draw the attention of the prosecution to relevant provisions from the ‘Charging Standard’ contained within the Code for Crown Prosecutors 2018. We will always look to argue either that there is not a ‘realistic prospect of a conviction’ or that a prosecution is not in the ‘public interest’. Our team of 25 lawyers are trained through the ‘Olliers Academy’.  Such is the importance of the pre charge stage of a case we have devised an in house accreditation for criminal investigations.

But it wasn’t always like this

At the start of my career in the late 1980’s, life was simple for the solicitor representing his client at the police station. Police disclosure was minimal, the caution was in two, not three, parts, and there was no risk of an inference should a suspect fail to answer something they may later rely on in court.   The solicitors tended to stick to the adage “if in doubt say nothing”. Cases would often proceed to court with the prosecution having really no idea as to the nature of the defence.

The days of the ambush defence are long gone

For many years we have now had three three-part caution whereby “it may harm your defence if you fail to mention something that you later rely on in court” – in other words an inference could be drawn.  The police are required to provide a level of disclosure to a police station representative. Post charge, particularly in Crown Court cases, there is an expectation that a defence statement will be provided setting out the nature of a defence.

Lengthier police investigations

Police investigations have now become lengthier and investigations in relation to certain offences have increased. For example, victims have been encouraged to come forward in cases of a sexual nature. Greater police resources are put into the investigation stage of a case. The practice of the suspects being ‘released under investigation’ hasn’t helped the situation either.  Being removed from bail is neither here nor there for many suspects. It is in the fact that they are under investigation that causes the anxiety. The good news is that a longer investigation is also an opportunity for the defence to take the initiative, to go on the front foot and take the fight to the prosecution.

The Code for Crown Prosecutors and the Charging Standard

The Charging Standard is the standard by which the Crown decide to prosecute, it is contained within the Code for Crown Prosecutors (The Code). The 2013 Code merely conceded that there might be circumstances in which defence representations could be taken into consideration.  By 2018 the updated Code recognised the importance of defence input and recognised that there were circumstances when it was appropriate for the prosecution to invite the defence to make representations in relation to certain aspects of the police case.

The Olliers approach

For in excess of ten years, the team at Olliers have looked to liaise with the police and make effective representations against charge during the investigation process. Whilst many clients were being advised by their legal representatives, due to lack of public funding, that the only option was to watch and wait, Olliers have always chosen to move on to the front foot, engage with the police, build a defence case with the ultimate objective of successful representations against charge.

The Attorney General’s Guidelines on Disclosure 2020

For many years we have been ahead of the curve. The Attorney General’s 2020 Guidelines on Disclosure, which came out in December 2020, were exactly what we were hoping for. The Government has now made it clear that it wants a more front loaded approach. In the foreword the Attorney General and the Lord Chancellor looked forward to ‘earlier engagement between the prosecution and defence, harnessing the use of technology, and culture change’

Annex B – pre charge engagement

The Attorney General’s Guidelines on Disclosure contain, at Annex B, the provisions for pre charge engagement. At Olliers we saw Annex B as vindication of what we had been saying and doing for the best part of 10 years.

So what is pre charge engagement?

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 in evidence at trial. A no comment interview does not preclude the possibility of pre-charge engagement.

The benefits 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 prosecutor’s 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.

The DPP’s Guidance on Charging 2020

The Director of Public Prosecution’s Guidance on Charging (31^st December 2020) provides a clear structure in which criminal allegations are investigated and prosecuted. Defence teams must have a detailed working knowledge of the Guidance as part of a proactive pre-charge engagement strategy. The Guidance replaces previous guidance. It outlines;

• The charging process
• Application of the Full Code Test in deciding whether to prosecute
• The Threshold Test
• Obtaining advice from a prosecutor
• Out of court disposals
• The National File Standard: material and information required for charging and prosecution
• Understanding post charge case management
• Division of responsibility between police and CPS
• Procedure for charging referrals via the Digital Interface
• Information required to be submitted to the Digital Interface before charging decisions can be made
• Case types where early advice is recommended.

The graduates from the Olliers Academy all know that understanding these provisions is at the heart of a proactive and engaged defence strategy. The Guidance makes it clear that a police investigator must pursue all reasonable lines of enquiry even when they point away from a suspect and, at Olliers, we frequently remind officers of this requirement.

Police response to Pre charge engagement and the DPP’s Guidance on Charging 2020

Both set out a formal structure for the way in which the police present their case to prosecutors with particular reference to the National File Standard. The formal provisions for pre-charge engagement provide, an opportunity to the defence to enter into a process that cannot be ignored. In early 2021, many police were unfamiliar both with the National File Standard and associated provisions and indeed pre-charge engagement.  However, as we move into 2022 all officers are aware of the provisions and most are happy to at least consider pre-charge engagement.

The future landscape

The new 2022 Attorney General’s Guidelines on Disclosure (July 2022) will only serve to reinforce the direction of travel. Criminal lawyers of the future will come in all shapes and sizes. Of course there will be the specialist Crown Court advocates, dealing with high profile cases. The most effective criminal lawyer will be the one who keeps themselves and their client out of the courts (and the news!)

Contact our Investigations solicitors

If you would like to discuss how we can proactively assist you in relation to your case at a pre-charge stage, contact us by telephone on 0161 834 1515, by email to info@olliers.com or complete the form below and we will contact you.