Pre-Charge Engagement | Criminal Prosecutions
Pre‑charge representation, also known as pre‑charge engagement, refers to the legal support provided to individual and corporate clients where the police are investigating an allegation, but no charge has yet been made.
By way of example, our solicitors act on our clients’ behalf by engaging with the police and the Crown Prosecution Service, by submitting written representations explaining why the ‘evidential’ and ‘public interest’ tests for prosecution have not been met.
The overarching objective of pre‑charge engagement is to influence the decision‑making process and to resolve the matter without formal charges being pursued.
The commencement of a prosecution for alleged criminal activity carries enormous responsibility, given that, at that stage, the individual or organisation is entitled to be regarded as innocent. Nevertheless, the act of commencing a prosecution may give rise to immediate and serious adverse consequences.
With these considerations, it is essential that the correct defendant is charged with the appropriate offence and that the evidence available is supportive.
Accordingly, there exists ‘The Code for Crown Prosecutors’ (‘the Code’) for which the Director of Public Prosecutions, as head of the Crown Prosecution Service (CPS) is responsible. The Code sets out detailed guidance for those empowered to decide whether a prosecution should be commenced.
Nazaqat Maqsoom, Legal Director at KANGS explains how pre‑charge decisions are made and the benefits of pre‑charge representations.
Contents
Pre-charge Decisions | The Code for Crown Prosecutors
Whilst the Code is, in general terms, directed towards CPS prosecutors, it is also followed by other prosecutors either as the result of convention or direction by law. Before proceedings can be commenced, the two stages which constitute the Code must be passed, which are:
- the Evidential stage, and
- the Public Interest stage.
There are exceptional cases where the ‘Threshold Test’ may apply, where the Code is not met and where there exist extremely serious circumstances allowing, for example, the immediate refusal of bail for the defendant.
The Evidential Stage
Prosecutors must believe that the evidence available and which can be presented to the court is sufficient to establish a realistic prospect of conviction against each defendant on each charge.
When considering the strength of the evidence the Prosecutors will consider, amongst other things:
- the nature of the Defence case (if known) and the extent to which it may affect the prospects of conviction,
- the admissibility of the evidence and whether there may be grounds for a court not to accept it,
- the reliability, accuracy and credibility of all the evidence,
- whether or not further potential evidence may be available which may be pertinent.
If this Evidential Stage is not satisfied, a charge cannot be proceeded with at that time.
The Public Interest Stage
Once Prosecutors are satisfied that the Evidential Stage has been met, they must consider whether it is in the Public Interest to proceed with a prosecution rather than seek resolution by way of an out-of-court disposal.
When considering Public Interest Prosecutors have regard to:
- the seriousness of the offence,
- the level of culpability of the suspect,
- the circumstances of and the harm caused to the victim,
- the suspect’s age and maturity at the time of the offence,
- the impact on the community,
- whether a prosecution provides a proportionate response,
- the protection of any sources of information.
What are the benefits of pre-charge representation
No two pre‑charge representations are the same. However, they commonly involve providing evidence to the police or the CPS to demonstrate that they cannot meet the threshold tests and there is no realistic prospect of a conviction.
Pre‑charge representations can offer several important benefits such as:
- present evidence that points away from the individual or corporation under investigation,
- allowing the individual or corporate client to set out mitigating factors or provide alternative explanations for actions or behaviour that may otherwise be misunderstood,
- prevent a charge from being brought in circumstances where the case would likely be stopped later, once further information comes to light. This can save considerable time and avoid unnecessary legal costs,
- help avoid a formal charge being recorded, which may otherwise appear on an individual’s DBS record. This is particularly significant for those in regulated professions, where a charge could affect current or future employment.
Should I wait to see if I am charged?
We frequently receive calls and enquiries from individuals who have attended a voluntary interview where they were represented by a duty solicitor who advised them to “wait and see” whether they will be charged.
We take a different approach. Our solicitors act proactively in every case, with a clear focus on what is in our clients’ best interests. We work to strengthen their case at the earliest possible stage, with the aim of preventing a charge being brought or a matter progressing to court wherever it is appropriate to do so.
How can we assist?
At KANGS, we regularly support individuals and businesses during the pre‑charge stage of a criminal investigation, offering clear, practical guidance at what can be a stressful and uncertain time.
Our assistance often includes attending voluntary interviews, carefully reviewing any pre‑charge material disclosed, and advising you on the most appropriate way forward.
Where it is likely to be helpful, we will also engage directly with the investigating authority on your behalf. In addition, we also prepare detailed and carefully considered pre‑charge representations, ensuring that your position is presented clearly and that your interests are protected.
If you are facing an allegation of a criminal offence and have been asked to attend a voluntary police interview, or if you have already been interviewed and charged or released under investigation, our team can provide you with expert legal advice and representation.
Contact us using the details below to speak to an experienced solicitor.
Tel: 0333 370 4333
Email: info@kangssolicitors.co.uk
We provide initial no obligation discussion at our three offices in London, Birmingham, and Manchester. Alternatively, discussions can be held through video conferencing or telephone.
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