Code for Crown Prosecutors – the Threshold Test

Matthew Claughton considers how charging decisions are made discussing the Code for Crown Prosecutors and the circumstances in which the Full Code Test need not apply and the Threshold Test can be used.

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 make 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, a 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 Threshold Test 

The Threshold Test applies in limited situations where the Full Code Test cannot be met but the seriousness or circumstances of the case justify an immediate decision to charge and there are substantial grounds to object to bail.

The police should always attempt to conclude all ‘reasonable lines of inquiry’ whilst a suspect is detained. This will allow the Full Code Test to be applied. However, if they cannot and, and the suspect presents a substantial bail risk the Threshold Test can be applied.

There are five conditions that must be met before a suspect can be charged under the Threshold Test. Defence practitioners must be familiar with these conditions.

Given the fact that use of the Threshold Test is a departure from the Full Code Test prosecutors must rigorously examine all five conditions of the Threshold Test. The request for a charging decision must be sufficiently detailed to satisfy a prosecutor that each of the conditions are met.

The five conditions of the Threshold Test

1. There are reasonable grounds to suspect that a suspect has committed the offence.

• There must be reasonable grounds to suspect the person to be charged has committed the offence. A prosecutor must consider the potential impact of any defence or information put forward by the suspect or upon which they might rely.
• Prosecutors must consider all material or information available, even if not in an evidential format.
• Material relied on at this stage must be capable of being put into an admissible format for court as well as being both reliable and credible.

2. Further evidence can be obtained to provide a realistic prospect of conviction.

• It is important to remember that at this point there is not yet the ‘realistic prospect of a conviction’ as required by the Full Code Test. So, there must be reasonable grounds to believe that the ongoing investigation will generate further evidence, so that when all evidence is considered together, then The Full Code Test will be met.
• Further evidence must be identifiable – not merely speculative.
• Prosecutors must consider:
  – nature, extent, admissibility of any likely further evidence and its likely impact;
  – any charges the evidence will support;
  – reasons why it is not already available;
  – when the evidence is likely to become available; and
  – whether delay in application of the Full Code Test is reasonable.

3. The seriousness or the circumstances of the case justify an immediate charging decision.

• This point is fairly obvious. Both the seriousness and the circumstances of the case must be assessed in relation to the alleged offending as should the level of risk created by granting bail.

4. Continuing substantial grounds to object to bail in accordance with the Bail Act 1976 exist.

• Again, a fairly obvious point. There would be no point making a Threshold Test decision to charge for a defendant who was then bailed. If, following a proper risk assessment, it is felt that the suspect is not suitable to be bailed, even with substantial conditions, then the condition is met.

5. It is in the public interest to charge the suspect.

• This test is part of the Full Code Test and arguably does not take matters further

What happens if all five conditions of the Threshold Test are not met?

All conditions must be met and if they are not – the suspect cannot be charged.

Where there are further reasonable lines of inquiry the police must continue to detain the suspect allowing further investigation or release the suspect under investigation or on bail.

If there is no prospect of the case ever meeting the evidential stage of the Full Code Test, it must be the subject of no further action.

Police use of the Threshold Test

The Threshold Test must only be applied where the seriousness or the circumstances of the case justify the making of an immediate charging decision. Such cases are usually charged by a prosecutor.

Restrictions on the use of the Threshold Test

The following restrictions apply to use of the Threshold Test:

• cannot be applied to summary only, non-imprisonable offences;
• where used to charge a summary only imprisonable offences, the police must record how each condition is met – enabling a prosecutor to consider whether the test was appropriately applied;
• the Test cannot be used for either way offences that are suitable for summary trial and where a guilty plea is anticipated.

Application of the Threshold Test where there are multiple offenders

If it is deemed appropriate to apply the Threshold Test to one alleged offender, the Test will be applied to all offenders – provided conditions one, two and five are met.

Review of the Threshold Test

The application of the Test must be kept under review and:

• There is a requirement for a shared action plan containing an agreed timetable which identifies additional material or information;
• Prosecutors must adopt a proactive approach to securing additional material from the police;
• Police must advise the prosecutor immediately if the timetable is unlikely to be met or if the further material or information arises which means the Test should no longer be applied;
• Prosecutors must regularly assess material and information to ensure the charge remains appropriate and continued opposition to bail is appropriate;
• The Full Code Test must be applied as soon as anticipated further evidence or material is obtained and Crown Court cases, before formal service of the prosecution case.

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 investigation 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.