Charging Guidance – Information Required for Charging Decision

Matthew Claughton considers the information required by the Crown Prosecution Service before a Charging Decision can be made

What sets Olliers apart from many criminal defence firms is the proactive approach we adopt during a criminal investigation. We have an excellent reputation for representation before the criminal courts, but the best possible outcome is when an investigation ends without our client being prosecuted. And, to achieve the best outcomes for our clients, our lawyers all have excellent working knowledge of how investigators and prosecutors operate. This includes an in depth understanding of all information provided to a prosecutor prior to making a Charging Decision.

Throughout these pages there is repeated reference to the ‘Charging Standard’, ‘pre-charge engagement’, ‘representations against charge’, the need for a ‘realistic prospect of a conviction’ and the fact that a prosecution must be in the ‘public interest’. This is because our team of over 25 defence lawyers place huge emphasis on the pre-charge engagement stage of a case. Put simply, it is what we do.

The Olliers pre-charge engagement strategy

During any criminal investigation, we will always look to making successful ‘representations against charge’.

From the outset we will look at early pre-charge engagement with investigators.

We will closely scrutinise whether the ‘Charging Standard’ contained within the 2018 ‘Code for Crown Prosecutors’ is met. Wherever possible we will argue that there is not a ‘realistic prospect of a conviction’ or that a prosecution is not in the ‘public interest’ and that no further action should be taken against our client.

As part of our strategic approach comprehensive knowledge of the workings of both the Code for Crown Prosecutors and the DPP’s Guidance on Charging is essential.

This includes a full understanding of:

• when the Full Code is applied to a charging decision
• when the Threshold Test is applied
• when the advice of a prosecutor needs to be obtained
• cases that require Crown Prosecution Service authority to prosecute and those which do not require Crown Prosecution Service authority to prosecute
• information that should be provided to a prosecutor before a charging decision is made
• what material must be provided to a prosecutor before a charging decision is made

The Request for a Charging Decision

The request for a charging decision must be submitted through the digital interface between the police and CPS where available and used by the force, supported by the following information, where appropriate, in any form indicated in the National File Standard.

Information relating to suspect(s)

• main language spoken, any relevant dialect, whether an interpreter is required;
• relevant mental health issues
• date and time of the arrest(s);
• whether in custody or on bail;
• information in support of any remand application;
• current or pending proceedings;
• relevant previous similar offending;
• orders to be sought on conviction.

Information relevant to the offence(s)

• whether case is considered e.g. Domestic Abuse or Hate Crime (Racist incident/Disability Hate Crime/Homophobic/Transphobic etc);
• proposed charge(s);
• any Statutory Time Limits;
• relevant consent e.g. Attorney-General’s Consent; DPP’s Consent.
• summary of facts;
• likely issues in the case;
• current understanding of the defence case, (include explanation offered by the suspect, whether or not in formal interview;
• details of questions asked in interview relevant to the points to prove/issues in case and responses
• if suspect not interviewed, details of the reasons for that decision;
• analysis of the strengths and weaknesses of case;
• anticipated plea and rationale for that view;
• whether a s.70 POCA committal should be sought in order to obtain a confiscation order.

Information relevant to the Investigation

• reasonable lines of inquiry conducted, including those that might assist defence, and the results of inquiries;
• lines of inquiry which will not be pursued and the rationale;
• outstanding reasonable lines of inquiry, together with timescales for completion and assessment of likely impact of inquiries on the charging decision,
• explanation for delay between date of offence, commencement of investigation and the referral to CPS;
• the status of any linked offenders, including whether pending arrest/interview/charged, subject to out of court disposal or NFA, any account given relevant to suspect’s conduct;
• status of linked investigations;
• whether sources of information require protection;
• details of action taken, and timetable set in relation to asset recovery;

Information relating to material subject to examination

Confirmation regarding whether the following have been, or may be, examined:

• mobile phones
• social media
• audio-visual evidence
• third party material

Where that is the case, there should be an explanation of the purpose of any examination and potential impact, why such examination is reasonable, whether relevant consent obtained and the examination strategy (include parameters of examination of CCTV, ANPR (geographical and time) and use of cell site).

The extent of any download or copying should be provided, including key word setting and date/time parameters. If devices or material was returned without examination, or an account not further examined, an explanation should be given. Information should confirm whether suspect has been asked for or provided key word searches.

Information relating to outstanding evidence

Certain evidential material may not be immediately available for charging purposes:

• audio-visual material
• information relating to bad character
• communications evidence
• forensic evidence
• identification evidence
• medical

Where any of the above, or any other evidence or exhibits remain outstanding, it should be identified and a target date given for its availability. Issues that may affect its availability within the time frame should be identified.

Information relating to victims and witnesses 

Has a victim/witness failed to engage with/support the investigation. This may be due to a refusal to provide a statement or support a prosecution or be unlikely to attend court. If so, their relevance to the case should be stated.

If there is a repeat victim, there should be a summary of circumstances of previous incidents.

Where a victim/witness is vulnerable or intimidated, the basis of eligibility for special measures should be set out along with a special measures assessment.

Proposals for supporting and/or protective measures proposed for any victims or witnesses who are not eligible for special measures should be provided.

Where the main language spoken is other than English, any interpretation requirement should be detailed.

Confirmation of whether a Victim Personal Statement (VPS/ISB/CIS) has been offered and whether it has been taken, whether it would be read out and if so whether this would be by the victim.

Other considerations

Information should be provided about any matters of local or public interest, other confidential information, views of the investigating officer, other issues on which the decision of the prosecutor is requested.

Application of the Code Test

Information must set out the reasons why both the evidential and public interest stages of the Full Code Test are met or how the five conditions of the Threshold Test are met.

Information relating to compliance and assurance

The request must confirm that the referral has been subject to quality assurance and that guidance has been followed. It must also confirm that the impact of potentially disclosable material has been considered, in relation to the decision to charge. This should include unexamined material, or material capable of being obtained through additional reasonable lines of inquiry.

Importance of pre-charge engagement

At Olliers, we understand the stress and anxiety a criminal investigation can cause. The work we undertake for clients during the pre-charge engagement stage of the criminal process goes way beyond a police station attendance. Prior to and following an interview under caution, our team will do everything it can to minimise the likelihood of a client under investigation being charged with a criminal offence.

Why choose Olliers?

Our team of defence lawyers is one of the largest in the country. Our senior lawyers are all leaders in their field. Olliers is ranked as a top tier law firm by both the authoritative guides to the legal profession, namely the Legal 500 2025 and Chambers Guide 2025. We are a Times Best Law Firm 2025. We are the Manchester Legal Awards 2024 Crime Team of the Year retaining the title from 2023, an award we have won seven times since 2011.

Contact our specialist pre-charge engagement lawyers

If you would like to explore how Olliers can assist you, please contact our specialist team by telephone on 020 3883 6790 (London), 0161 834 1515 (Manchester), via email at info@olliers.com or complete the website form below and we will contact you for a confidential discussion.