Written 5th March 2025 by Matthew Claughton
How is a decision to charge someone with a criminal offence made?
Matthew Claughton considers how charging decisions are made discussing the Code for Crown Prosectors and application of the Full Code Test.
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.
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 cases 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
It goes without saying that prosecutors and police investigators must have a good working knowledge of the evidential and public interest stages of the Full Code Test as set out in the Code for Crown Prosecutors. The same applies to a defence practitioner specialising in pre charge engagement.
‘Is there a ‘realistic prospect of a conviction?’ – the evidential stage
A prosecutor must be satisfied that there is enough evidence to provide a ‘realistic prospect of conviction’ on each charge. This must be based on an objective assessment of the evidence, which must include the impact of a defence and other information that a suspect has put forward. They should consider whether evidence is ‘admissible, credible, and reliable’ and whether there is any other material or information that might affect the evidence.
The Code defines a realistic prospect of conviction as “an objective, impartial and reasonable jury, bench of magistrates or a judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.” At Olliers, when making representations against charge we will always draw this definition to the attention of a decision making lawyer. The onus is upon them to explain why it “is more likely than not” that a defendant will be convicted.
If a case does not pass the evidential stage it must not proceed, no matter how serious or sensitive. If the evidential stage is met, the public interest stage must then be considered.
‘Is a prosecution in the ‘public interest?’ – the public interest stage
A prosecution should only take place if the prosecutor, or (police decision maker), is satisfied that there are ‘public interest factors tending against prosecution which outweigh those in favour’. This includes consideration of whether the public interest served by way of an out of court disposal instead of a prosecution.
Prosecutors, should consider each of the points set out in paragraphs 4.14 (a) to (g) of the Code for Crown Prosecutors to determine whether a prosecution is in the public interest.
They are:
- seriousness of the offence
- culpability of the suspect
- circumstances of and the harm caused to the victim
- suspect’s age and maturity at the time of the offence
- impact on the community
- whether prosecution is proportionate
- whether sources of information require protection
These factors, should ensure enable that prosecutors consider all relevant points and it is the role of the defence lawyer to draw all points favourable to the suspect to the attention of the decision maker.
Usually, the issue of the strength of the evidence comes before that of public interest. In some case however, it will be clear from the outset, that the public interest test is not met.
The Full Code Test
In all other situations, the Full Code Test should only be applied,
- (a) when all outstanding reasonable lines of inquiry have been pursued; or
- (b) prior to the investigation being completed, if the prosecutor is satisfied that any further evidence or material is unlikely to affect the application of the Full Code Test, whether in favour of or against a prosecution.”
The intention is that decisions are made in a timely manner. It allows for a decision to be made, despite there being further enquiries, if the outcome of those enquiries is unlikely to affect the final decision. At Olliers, we often argue that an early decision to take no further action should be made and outstanding enquiries will not materially affect a decision. Alternatively we may argue that a decision should be deferred until additional lines of enquiry have been undertaken if we feel that the outcome of such enquiries will strengthen our client’s position.
Factors relevant to whether a decision should be taken or deferred include:
- strength of prosecution case, and whether it could it be strengthened or weakened by additional enquiries;
- likely defence, and whether it should be explored further;
- nature, extent, length, impact of the lines of inquiry;
- nature, extent, and scale of the evidence or material not yet examined or recovered, and its’ likely impact;
- proportionality of delaying a charging decision;
- impact of delaying charge on any wider investigation;
- likelihood of a defence application to stay proceedings on grounds of delay;
- anticipated plea;
- statutory time limits.
Just because there is unrecovered or unexamined material it does not necessarily mean that a decision cannot be taken, even if it is to charge. A decision should be deferred if it is considered that unrecovered or unexamined material may affect the view that there is a realistic prospect of conviction.
Where an immediate charging decision cannot be made on the Full Code Test because of outstanding inquiries, in certain circumstances, the Threshold Test may be applied to effect a charge.
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 this 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.
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- About the Author
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Olliers’ Managing Director Matthew Claughton is widely regarded as having steered the firm to its market leading position.
Matthew is an outstanding criminal lawyer ranked by the Legal 500 2025 as a top tier practitioner in criminal law as well as the Northern Powerhouse Criminal Lawyer of the Year 2023.
