This article examines the opportunities available for the defence to keep to a minimum the likelihood of a client under investigation being charged with a criminal offence. In particular it focuses on the 2018 Code for Crown Prosecutors and relevant sections of the Attorney General’s ‘Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System’
At Olliers we place great emphasis on a proactive approach to the investigation stage of the criminal process. We understand the stress, anxiety, reputational damage and cost a prosecution can cause. Wherever possible we look to make representations to both the police and Crown Prosecution Service so as to avoid a charge in relation to any of our clients suspected of a criminal offence.
Code for Crown Prosecutors 2018
October 2018 saw the publication of a fresh Code for Crown Prosecutors. Under the Code the Crown Prosecution Service (CPS) should only charge, if there is a realistic prospect of a conviction and secondly, that it is in the public interest to do so.
In reaching a charging decision a crown prosecutor must look at the evidence and information provided to them by the police or other investigators. However, and this is the important bit, they can also look at evidence and information provided by the suspect or those acting on their behalf who may submit evidence to the prosecutor to help inform their decision. The 2018 Code goes slightly further than the 2013 Code because it suggests that in appropriate cases the prosecutor may even invite representations from a suspect or their legal representative.
Our message is clear. The code for Crown Prosecutors provides a specific window for the defence to make representations as to why a client should not be prosecuted. Our firm view therefore is that if representations can be made then they should be made.
Attorney General’s ‘Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System’ – November 2018.
November 2018 saw the publication of the Attorney General’s Review (the Review). It is a detailed report focusing on disclosure to defence teams and material obtained during the criminal investigation. This year we have seen the establishment of the NDIP – The National Disclosure Improvement Plan. At section 5, some 31 pages into the Review we have ‘Early and meaningful engagement between prosecution and defence’.
The Review’s preliminary point is that early and meaningful engagement is crucial for the purposes of disclosure. The suggestion is that it is incumbent upon prosecution and defence to identify issues as early as possible. Reference is made to ‘obligations in relation to defence statements’ something all practitioners are familiar with.
However, it is the second section of the chapter which focuses on pre-charge engagement that is perhaps of greatest significance, certainly for the purposes of this article. What may seem to be an obvious point is made, namely that nothing prevents the prosecution and defence discussing the case at any stage,(at Olliers we have been banging this drum for several years). Emphasis is placed upon the value of defence engagement pre-charge where lines of enquiry which point away from the suspect should be taken into account. An onus is therefore placed upon the defence identifying undermining material at the outset, finalising weak cases at any early stage.
The Review recognises the right to silence but also focuses on the caution and the fact that an inference can be drawn from a failure to mention when questioned something an accused later seeks to rely upon.
The Review goes as far as to identify areas of good practice, of benefit to pre-charge disclosure management.
It is suggested that:
- Investigators may ask both complainant and suspect whether digital material exists which may have a bearing on the investigation.
- Investigators and defence representatives should agree a summary of lines of enquiry arising from an interview, (this is almost unheard of).
- Standard questions should be used by interviews identifying common disclosure issues and barriers, for example, encryption keys.
- There should be provision for defence representatives setting out clear representations of potential lines of enquiry in a prepared statement at the beginning of the interview. Query, does this flag up the notion of a prepared statement prior to an interview that is dealt with by way of questions being answered.
- Use of form MG3, request for advice from prosecutor form to subsequently draw defence representations on lines of enquiry to the attention of the prosecutor, (I would go a stage further and make this a formal part of the charging decision process).
The Review found that there was a gap pre-charge in circumstances where, “if the defence knew more about the prosecution case they might volunteer more information, and if the investigator and prosecutor knew about that information it would help them identify new lines of enquiry, particularly in relation to where exculpatory material might on a digital device or social media”.
The Review found that there were examples where pre-charge engagement between prosecution and defence might have avoided cases being charged when such cases would stop later in proceedings. Some practitioners might feel that this is stating the obvious.
A third relevant publication is the revised Attorney General’s Guidelines on Disclosure which are to include guidance on pre-charge engagement. It is not clear when these guidelines will be published.
Some may feel that these developments are ground breaking. There is clear movement towards a more formal recognition of the role of the defence in making representations to the prosecution so as to avoid a client being charged. Can it be argued that this represents a movement away from our adversarial system to a more inquisitorial approach?
Pre-charge funding
Funding is a huge issue. Put simply, there is no funding for the defence to follow any of the steps referred to above. The current police station remuneration provisions for legally aided cases are disturbingly under-funded. Funding is very modest at the police station but it grinds to a halt the moment a suspect leaves a police station.
The future
There is arguably a lot more work to be undertaken after the police station and prior to a charging decision being made. And yet, a suspect with limited or no means simply cannot instruct his legal team to perform what may amount to the legal equivalent of life saving surgery. Consequently, a file for a client who has been ‘released under investigation’ sits in a filing cabinet (electronic or otherwise) until a charging decision is made.
The defence have always had the opportunity to work on a proactive basis, engaging with investigators and making representations against charge. Funding may be non-existent. The window for representation may still be an informal window rather than a formal stage of the process. However the landscape is changing and the defence should adopt a robust and pro-active approach towards the pre-charge stage of the criminal investigation process. It should be appreciated by the police and Crown Prosecution Service alike. It has the opportunity to be cost effective with fewer weak cases going before the courts, alleviating stress and anxiety on the part of clients and complainants alike.
Matthew Claughton – criminal defence lawyer
Written by Matthew Claughton. If you would like to discuss how Matthew and his team can proactively assist you in relation to your case at a pre-charge stage, contact him by telephone on 0161 8277010 , by email to matthewclaughton@olliers.com or click here to send us a message.