The National File Standard – and why it is so important for Criminal Defence Lawyers

At Olliers 2021 has been an exciting year as the firm continues to develop the amount of pre-charge work it undertakes during the investigation stage of the case.

The last day of 2020 saw the publication of two significant documents:

‘The Attorney General’s Guidelines on Disclosure 2020’ and the ‘Directors of Public Prosecutions Guidance on Charging 2020’.

Pre-charge engagement

At Olliers, we place huge emphasis on ‘pre-charge engagement’. The provisions covering formal pre charge engagement are contained at Annex B to the Attorney General’s Guidelines referred to above.

However, for pre-charge engagement to be effective, the defence practitioner needs a comprehensive understanding of what is going on at the ‘other side’. In other words, the defence lawyer needs to know how the police operate. The police are required to complete pre-charge reports and prosecution case information as directed by The Director’s Guidance of December 2020 and in accordance with the National File Standard.

The National File Standard in operation

The police must send material and information to the CPS digitally. The National File Standard dictates the material and information needed for the important points throughout the course of the case. The National File Standard assists the police in their understanding of what the CPS need. If the police are compliant with the NFS, then it should generally enable the CPS to make charging decisions without requesting further information.

The Attorney General’s guidelines

Information is required on whether, guilty plea or an anticipated guilty plea, whether it will be in the magistrates or the crown court. It is a pre-requisite for a defence practitioner need a working knowledge of the Attorney General’s guidelines. It runs hand in hand with any defence pre-charge engagement and the Charging Standard. Armed with a comprehensive knowledge of the provisions of pre charge engagement and the requirements of the National File Standard a defence practitioner can make effective representations against charge, set against the Charging Standard contained within the Code for Crown Prosecutors.

Annex 4 of the Guidelines contains a requirement for an analysis of both the strengths and weaknesses of the prosecution case. It also refers to the reasons why both the evidential and public interest stages of the Full Code Test are met.

Significantly, at Annex 5 of the Guidelines – in any charging referral the following needs to be considered;

• ‘reasonable lines of enquiry’
• other considerations such as bad character and special measures
• ‘code test compliance’

The National File Standard and the Charging Standard

In other words, the NFS concentrates the mind of an investigating officer on Code compliance, specifically on the Charging Standard and the requirements for both a realistic prospect of conviction and the need for the prosecution to be in the public interest. Annex 6 of the Guidelines recommends that in certain types of cases early CPS advice is obtained. Knowing whether an early referral is likely to be made is critical to defence strategy.

Cases where early advice should be sought include; cases of rape, cases involving a death, modern slavery or trafficking cases, cases involving multiple suspects, large scale fraud, major police operations particularly in cases of rape. In a situation where early advice is going to be sought, there may be a defence opportunity to make early, preliminary points that may shape the direction of an investigation. Alternatively, there may be extremely strong points capable of bringing the case to an early conclusion.

There is no doubt that knowing how the other side operate is more important now than ever before. No proactive defence strategy can be complete with a comprehensive knowledge of the Director’s Guidance on Charging and the requirements of the National File Standard.

Article written by James Claughton

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