The Value of Pre-Charge Engagement

The opportunity for early engagement between defence lawyers and investigators has always existed. The extent to which investigators have responded to such engagement has, however, been patchy. 

The option for a defence solicitor to make representations to a custody officer at the point of charge has always existed. However, the effectiveness of such representations was negligible as by that stage a charging decision was usually a fait accompli. Custody officers tended to acquiesce to the request to charge made by the case officer, rarely factoring in representations from defence solicitors. Their preference being to let the court decide rather than act as an arbitrator in the police station. Perhaps, understandably, one police officer was reluctant to gainsay another.

Consequently, there were many cases going to trial where charges were clearly not merited on the evidence. The waste of public time and funds that resulted was a serious concern. As was the inconvenience caused to suspects who might spend protracted periods on bail or, in more extreme cases, in custody. 

Review of Charging Decisions under the Code for Crown Prosecutors

The Auld Review of Criminal Courts (2001) recommended that the Crown Prosecution Service (CPS) take over responsibility for sanctioning charges in all but the most minor cases. This was enshrined in statute under the Criminal Justice Act 2003. The CPS applies a two-stage test to each charging decision:

1. The evidential test – requires a prosecutor to conclude that there is a “reasonable prospect of conviction” before an impartial and objective court. No offence should be charged unless it meets this test.
2. The public interest test – if a case meets the evidential test, it should be charged unless there are factors deemed to be in the public interest that mitigate against charging the suspect.

One of the anticipated consequences of the Code was a reduction in the number of matters charged. In practice, this has not proven to be the case.  In the year 24/25, the CPS charged 149,411 suspects, an increase of 10.8% on the 23/24 figure of 134,848.¹ This may reflect a more rigorous approach to evidence gathering by the police than previously the case. Equally, it could reflect a lack of rigor by the CPS. The most recent review of the charging process identified several deficiencies² which included:

• The inefficient use and implementation of Action Plans in which the CPS sets out evidential gaps and administrative failures on the part of the police.
• The failure to exploit the potential benefits of early investigative advice by the CPS.
• The low levels of experience in both the CPS and the police, especially at supervisor grades.
• An apparent disconnect between the growing importance of digital evidence in criminal cases and perceived low levels of investment in the handling and management of digital material.
• Poor communication between the CPS and the police had led to a “them and us” mindset that prevented them from “forming mature, balanced working relationships”.

Given the deficiencies outlined, what scope is there for defence representations to have a positive impact on the charging decision-making process?

Pre-Charge Engagement

There has always been scope for defence lawyers to make representations to investigators about the quality of the evidence against their clients. This may have included, in appropriate cases, the voluntary disclosure of evidence which supports their clients’ defence and /or undermined the case against them. For many defence solicitors, however, such conduct is counter intuitive as their general disposition is to require the police to prove their case. Equally, many investigators are sceptical of defence lawyers and reluctant to engage with them “off the record” prior to referring a matter to the CPS. 

However, experience teaches that in appropriate cases investigators can be persuaded to take on board defence representations and include these in their case file for review by the CPS. Alternatively, in certain instances, the CPS will consider representations made directly to them by the defence. This can result in a decision not to charge the suspect, thus saving considerable time and money.

Attorney General’s Guidelines on Disclosure 2024

When considering the guidance to be given to prosecutors, investigators and defence practitioners on the application of the Criminal Procedure and Investigations Act 1996 (CPIA) disclosure obligations, the Attorney General included a section advocating PCE in appropriate cases. Annex B of the guidance encourages the use of PCE following an initial interview under caution and any charging decision. Such engagement to include:

• Giving the suspect the opportunity to comment on any proposed further lines of inquiry.
• Ascertaining whether the suspect can identify any other lines of inquiry. 
• Asking whether the suspect is aware of, or can provide access to, digital material that has a bearing on the allegation. 
• Discussing ways to overcome barriers to obtaining potential evidence, such as revealing encryption keys. 
• Agreeing any key word searches of digital material that the suspect would like to carry.
• Obtaining a suspect’s consent to access medical records. 
• The suspect identifying and providing contact details of any potential witnesses. 
• Clarifying whether any expert or forensic evidence is agreed and, if not, whether the suspect’s representatives intend to instruct their own expert, including timescales for this.

Discussions between suspects and investigators are recorded, but may not be used against suspects in any subsequent prosecution. The PCE process is not a substitute for a formal investigation. It may, however, result in a more focused process and, in appropriate cases, the termination of an investigation. 

The extent to which PCE has been employed in practice is unclear. Many defence solicitors have used PCE to secure favourable outcomes for their clients. However, research conducted by Professor Ed Johnston of Northampton University in 2022³ concluded that there was a lack of awareness and understanding of the process on the part of both investigators and defence lawyers. This was compounded by a perceived lack of sufficient funding to incentivise defence lawyers to actively engage in it. The Government responded to criticism on the funding issue by specifically providing for legal aid payments to be available for PCE work under the amended Criminal Legal Aid Contract 2022. The extent to which this has encouraged greater use of PCE is hard to judge. 

As a specialist in defending white collar crime, I can personally attest to the benefits of PCE in appropriate cases. The complexity of such cases often presents conceptual challenges for investigators. Early engagement often affords the defence with an opportunity to “educate” the investigating team about business practice and to contextualise the conduct under investigation. This in turn can properly focus the investigation and avoid unproductive lines of enquiry. A recent example of this involving procurement in the public sector produced a favourable outcome after detailed written submissions were made following the initial interview under caution. An undoubtedly long and protracted trial was avoided with all the resulting anxiety that this would have caused those involved, not to mention the huge drain on the public purse.

While my own experience of PCE and that of fellow defence lawyers is largely anecdotal, the advantages of early resolution of criminal investigations are self-evident. It should certainly form part of the ongoing wider debate as to how we reduce the totally unacceptable backlog of cases in the Crown Court system.