Charging Guidance – Material Required for a Charging Decision

Matthew Claughton discusses the material required by the prosecution before a charging decision can be taken. 

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. Effective pre-charge representation by the defence requires an in-depth working knowledge of exactly what material must be provided to a prosecutor before a Charging Decision can be made. 

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 

As part of our strategic approach a comprehensive knowledge of the workings of the Code for Crown Prosecutors is required as well as Guidance on Charging. A key feature is knowing exactly what material is going to be provided to the Crown Prosecution Service before a charging decision is made. 

Request for a charging decision 

A request for a charging decision has to be in the form indicated by the National File Standard. The ‘digital interface’ between the police and CPS, should be used. 

It should be accompanied by the following material: 

Evidential material 

• key witness statements 
• key exhibits 
• Crime/CRIS report 
• interview records, unless fully covered in the case summary 
• relevant checklists (e.g. Domestic Abuse, Hate Crime, Harassment and Stalking, Youth matters) 
• Risk Assessments  
• previous convictions of the suspect(s) and key prosecution witness(es)  
• victim personal statement  

Material related to disclosure 

In the case of an anticipated Not Guilty Plea the request is made for a charging decision on the Full Code Test (or a file is submitted to the CPS after the police authorisation for charge; 

• unused material schedules; 
• copies of relevant potentially disclosable material – with reasons 
• copies of material presumed to be disclosable – with reasons 

In other cases, the disclosure officer must provide the schedules as soon as possible after a not guilty plea.  

In urgent situations such as unplanned arrests and Threshold Cases, where a Not Guilty plea is indicated, the police must provide information about material capable of potentially undermining the prosecution case or assisting the defence case, together with reasons. Copies of potentially disclosable material should be provided if available. 

The Definition of ‘Key Evidence’ 

‘Key evidence’ describes the basic material upon which the prosecution will rely for the initial a charging decision, case management and the effective prosecution of the case. It is the evidence to be relied upon to establish the elements of an offence, including the identity the offender, any relevant state of mind, and any other evidence that can further strengthen the case. 

Key evidence includes the statements of: 

• civilian witnesses  
• police officers who have witnessed an aspect of the offence 
• expert witnesses 

The following are not considered ‘key’: 

• procedural statements, for example relating to arrest or detention 
• statements exhibiting items which not in dispute 
• continuity evidence. 

Where multiple witnesses provide similar accounts of the same events, they are non-key if they replicate a key witness account. They become ‘key’ if they materially differ. 

The role of all “non-key” witnesses, particularly civilians, should be detailed sufficiently in the case summary so that a prosecutor (and later the defence and the court) can understand their significance. 

Key evidence may also include other material, such as 

• audio-visual material (e.g. body-worn footage; CCTV; 999 calls; photographs) that proves the offence or has other evidential value; 
• streamlined forensic reports; 
• medical evidence; 
• other documents that will be relied upon.  

Audio visual material 

If audio-visual material can be made available to the CPS pre-charge – the relevant extracts of the audio-visual material must be made available and the officer involved must summarise the recording 

If audio-visual material cannot be made available to the CPS pre-charge, an officer who has viewed the material must provide a statement which: 

• confirms whether material captures all or part of an incident; 
• identifies relevant section of any audio-visual evidence by reference to start and finish points; 
• describes who and what is seen, including their relevant actions; 
• describes the evidential significance of the material including; 
• explains the basis upon which the suspect can be identified;  
• confirms whether material was shown to the suspect in interview and any response; and 
• confirms the quality of the recording including whether suspect identifiable  

Non key evidence 

Prosecutors must justify and record reasons for requiring “non-key” evidence. Blanket requests for “all statements” or a “full file” should not be made.  

General principles 

• key evidence should be available at the point of charge, except the Threshold Test cases; 
• it can come from one source (such as a complainant) but, more often, from multiple sources, including exhibits; 
• the police make the initial assessment of what evidence is likely to be relied upon, and what will be “unused”. The final decision will be for the prosecutor; 
• for the purpose of decision making, key evidence must always be considered alongside other information that may have a bearing on the evidential and public interest test and, in particular, any unused material. 

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.