Criminal investigations – defence strategies for bringing a weak case to an early conclusion

This short article is intended to identify strategies employed by Olliers solicitors to bring a weak case to an early conclusion without a protracted investigation and without a prosecution commencing.  At Olliers, the pre charge team places huge emphasis upon a proactive approach to criminal investigations striving to bring cases to an early conclusion with successful representations against charge. We recognise, the stress, cost and anxiety that court proceedings can cause not only for those facing prosecution but also for complainants.  For many years we have focused upon ‘pre-charge engagement’ something that is drummed into all trainees as soon as they join the firm. Immediately upon starting a training contract we are trained in pre charge work. We are trained at the Olliers Academy which ensures excellence in all stages of criminal defence work. We have our own ‘Pre Charge Accreditation Scheme’. This comprises of two online exams and a portfolio of pre charge cases. To the best of my knowledge no other firm in the country offers its own internal accreditation in pre charge work.

Pre-charge representations

Olliers will always establish early contact with investigating officers in order to establish an understanding of the case against our client. Whilst we recognise that some cases are, by their very nature complex and will involve a lengthy investigation, there may be cases where inherent weaknesses in the prosecution case are evident from the outset Case dependent, Olliers primary objective, is to draft representations against charge arguing that there is ‘not a realistic prospect of conviction’ or that a prosecution is not in the ‘public interest’ as required by the ‘Charging Standard’ contained within the Code for Crown Prosecutors 2018 However, investigators have to do more than comply with the Charging Standard and pre charge engagement with defence practitioners. They also have to comply with the Director of Public Prosecution’s Guidance on Charging 2020 (the ‘Guidance’) and the requirements of the National File Standard. Both the DPP’s Guidance and the Attorney General’s Guidelines (which contain the provisions for pre charge engagement) came into force on the last day of 2020. Investigators have had a lot to get to grips with. At Olliers, our concern is that on occasions investigating officers may be placing too great an emphasis on the Guidance and in so doing allowing weak investigations to drift on far too long, something we discuss here. 

Strategies for bringing a weak case to an early conclusion 

Investigators understand the Charging Standard but they may not have a comprehensive knowledge of the Code for Crown Prosecutors. We will always consider drawing attention to the following;  ‘The Full Code Test should 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.’ 4.3 Code for Crown Prosecutors So, if material provided by the defence is sufficient for a decision not to prosecute, then such a decision should be made even if every single enquiry has not been bottomed out.  In asking the investigator to respond to observations on weaknesses in the prosecution case reference can also be made to paragraph 5.3 DPP’s Guidance on Charging 2020 which states ‘The Code for Crown Prosecutors clarifies that a realistic prospect of conviction means “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.”  Prosecutors and police decision makers must therefore be in a position to explain why it “is more likely than not” that the court will convict.’ It would be open to ask how, bearing in mind the material already provided, it is conceivable that it is ‘more likely than not’ that a Court would convict. It might assist to add representations under paragraph 3.2 DPP’s Guidance on Charging 2020 by asking ‘Has a prosecutor considered whether this is a case which should be stopped quickly in accordance with paragraph 3.2 DPP’S Guidance on Charging 2020 on the basis that it does not meet the evidential stage of the Full Code Test and cannot be strengthened by further investigation?’ An additional option might be to draw the prosecutor’s attention to paragraph 4.25 of DPP’s Guidance on Charging 2020 which requires matters to be dealt with expeditiously ‘Prosecutors will be proactive in identifying and, where possible, seeking to rectify evidential weaknesses, and in bringing to an early conclusion those cases that cannot be strengthened by further investigation, or where the public interest clearly does not require a prosecution’ It might be useful to remind an investigator, that these provisions come from the very same Guidance, compliance with which, may be causing the delay in the investigation.  A number of additional questions may be asked of the investigator.

Request under paragraph 3.1 DPP’s Guidance on Charging 2020

Has consideration been given by the police as to whether the case meets the relevant criteria for referral to the CPS for a charging decision (as per paragraph 3.1 of the DPP’s Guidance on Charging 2020)? This can be referenced alongside the representations made thus far about weaknesses in the case. Drawing to the attention paragraph 7.11 DPP’s Guidance on Charging 2020 which states;  ‘Where, following early advice and further investigation, the police are of the opinion that there is no realistic prospect of conviction on evidential grounds, the police will inform the CPS of this decision. The responsibility for the decision to take no further action on evidential grounds will lie with the police.  If the evidential stage is met in respect of an offence which must be referred to the CPS for a charging decision, the case must be so referred even if the police propose taking no further action on public interest grounds’ It may also be helpful to draw attention of police to impact the investigation might be having upon all concerned – including the complainant  Finally, it may be pertinent to ask the police to justify ongoing delay by setting out in general terms what enquiries remain outstanding how such enquiries might materially affect a charging decision and a time frame for such enquiries.