Division of Charging Responsibility between police and CPS

Matthew Claughton considers the division of charging responsibility between the police and the Crown Prosecution Service.

This is a short article which sets out cases that can be charged by the police and those which require the authority of the CPS. It is an important distinction not least because it can materially affect the timing of defence representations against charge.

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 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

Cases that can be charged by the Police

The police can charge:

• summary only offences, irrespective of plea;
• either way offences of retail theft (shoplifting), irrespective of plea, provided it is suitable for summary trial; and
• Any either way offence anticipated as a guilty plea and suitable for sentence in the Magistrates’ Court;

As long as the case is not:

• one which requires DPP (or Law Officer)
• consent to prosecute;
• involves a death;
• connected with terrorism/official secrets;
• Hate Crime or Domestic Abuse;
• harassment or stalking;
• Violent Disorder or Affray;
• causing Grievous Bodily Harm/Wounding, or
• Actual Bodily Harm;
• A Sexual Offences Act offence committed by or upon a person under 18;
• An offence under the Licensing Act 2003.

Cases where the CPS will make the Charging Decision

Prosecutors will make charging decisions in all other cases.

In a case where one offence under consideration for charging must be referred to a prosecutor then all related offences must also be referred to the prosecutor.

Determining whether a Guilty Plea is anticipated

There are three scenarios:

• The suspect has been interviewed and admitted the offence in a clear and unambiguous manner.
• There is no clear and unambiguous admission but there is no explanation that is capable of being used as a defence and the commission of the offence and the identification of the offender can be established by police witnesses or visually recorded evidence.
• In a situation where no interview has taken place but the commission of the offence and the identification of the offender can be established by police witnesses or visually recorded evidence.

Assessing whether the case is suitable for sentence in a Magistrates’ Court or Youth Court

An either way case can be considered suitable for summary trial unless the circumstances of the offence make it likely a sentence of more than six months would be imposed. The same criterion applies to youth offenders.

The police must consider and indicate whether or not a s.70 POCA committal should be sought in order to obtain a confiscation order, even for summary offences. These cases cannot be suitable for sentence in the magistrates’ court.

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.