Pre-charge Representations – Your Last Chance to Avoid a Prosecution

Written 22nd May 2017 by Ruth Peters

Leading Lawyers for Pre-Charge Representations

A police interview is the formal questioning of a person regarding their involvement or suspected involvement in a criminal offence. It usually takes place as a result of the police collecting evidence during the course of an investigation and, rightly or wrongly, being in a position to link that evidence to an individual (‘a suspect’).

By its very nature, the prospect of being interviewed by the police, even amongst well versed suspects, can be a daunting experience.

Police Interview – the early stage

The police interview is typically the early stage of a long and drawn out process. Many suspects do not appreciate that the police are not the final decision makers. Post-interview, many feel helpless and anxious when informed that the matter is now ‘out of their hands and will be referred to the CPS for a charging decision’, a process that can take weeks or even months to finalise.

Charging – Role of Crown Prosecution Service

A charge is a formal accusation of a criminal offence and signifies the commencement of proceedings before the criminal courts. The suspect is now known as the accused as he is now accused, no longer suspected, of committing the offence(s).

The Crown Prosecution Service (CPS) is the independent public authority responsible for prosecuting people in England and Wales. The CPS ultimately make the decision on whether a suspect should be charged and what the charge(s) should be. They will consider alternatives to prosecution in appropriate circumstances.

The Decision to Charge – the Full Code Test

In making a decision whether to charge, a CPS prosecutor must apply the full code test  and must be satisfied that;

  1. There is enough evidence against the suspect in order to secure a realistic prospect of conviction (the evidential test) and;
  2. It must be in the public interest to prosecute the suspect (the public interest test).

If the two tests are met then a suspect is highly likely to be charged with criminal offences.

The impact of a successful prosecution cannot be undermined. Loss of livelihood, serious damage to reputation, a criminal record, imprisonment, deportation, breakdown of family life are some of the most feared implications of being found ‘guilty’.

Pre-charge Representations – Ensuring a Level Playing Field

As the CPS is independent from the police, it is expected to neutrally assess the strength of the evidence in deciding whether or not to prosecute or to discontinue a case for lack of evidence.

However, it is important to note that the CPS makes its decision largely from a case file prepared by the police that the suspect or his/her solicitor is not privy to, a process that many suspects regard as unfair.

As a suspect, you would want to ensure that your case is presented fairly and accurately and that the CPS prosecutor is alert to both sides of the story when making a final decision. There is no opportunity to make representations against a charge in person and the only course available to a suspect is to make written representations ahead of a charging decision being made.

These ‘pre-charge representations’ would be considered alongside the police case file and succinct and persuasive arguments made at an early stage could have the effect of the CPS taking no further action thereby bringing the present investigation to a happy end.

Pre-charge Representations – Seeing the Case from your Standpoint

The content of any pre-charge representations and the arguments to put forward to the CPS would depend on the issues in an individual case and may include;

  • Making legal and non-legal submissions in support of an argument that the full code test has not been met;
  • Challenging the credibility, reliability and admissibility of any prosecution evidence at an early stage;
  • Ensuring that the CPS is fully informed of a suspect’s defence from his/her perspective rather than that of a police officer;
  • Plugging any gaps – it is common for a suspect to forget to mention matters in interview that he later realises may assist his defence and now wishes to bring to the attention of the CPS;
  • Acting pro-actively to secure evidence – such as requesting that the CPS secure CCTV, speak to potential defence witnesses, conduct identification procedures, DNA testing to eliminate suspect from the investigation, facial mapping etc etc.
  • Raising arguments on compassionate grounds relevant to a suspect’s personal exceptional circumstances.
  • Correcting any concerns arising out of possible poor legal advice given at the police station.

We, at Olliers, are of the view that pre-charge representations are as important as the police interview itself as it is another opportunity to put forward a defence and any wider concerns but in written format.

Experience has demonstrated that taking this pro-active approach, as soon after the interview when events are fresh in one’s mind, has made a favourable difference to the outcome saving our clients time, money and many sleepless nights.

Click here to read more about the importance of pro-active defence in the context of allegations of rape and sexual assault.

Click here to read more about the limits to funding legal representation during the investigative stage of the criminal process.

Click here for Olliers charging rates.

Contact our Specialist Criminal Defence Solicitors  

For a confidential discussion about making pre-charge representations, please contact Ruth Peters on 0161 834 1515 or 07714 680535 or email info@olliers.com.

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