Police investigations – when Prosecution advice is sought

Matthew Claughton considers how charging decisions are made and the circumstances in which investigators will seek charging advice from prosecutors

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. And, for effective representation of clients under investigation, it is crucial for a defence practitioner to understand when and in what circumstances a police investigator is likely to seek the advice of a prosecution lawyer.

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

Matters upon which Prosecutors may advise the police and other investigators

• reasonable lines of inquiry;
• appropriate charges;
• evidential requirements;
• pre-charge procedures;
• disclosure management;
• asset recovery;
• overall investigation strategy;
• legal elements any offence under consideration.

Early Advice

Advice can be sought before a charging decision is requested or given during the charging process.

Where advice is given before a charging decision is sought it is known as “early advice”. Subsequent advice, apart from at the charging stage, is part of the continuing pre-charge engagement process between police and prosecution in the ongoing investigation.

It is important for a defence lawyer to understand what type of case and in what circumstances early advice is likely to be sought. Knowledge of prosecution involvement is likely to affect the timing of contact with investigators and strategic decisions as to what representations to be made and what material should be provided to investigators during the investigation. At Olliers we often provide investigators with initial material prior to final representations against charge precisely because we know a prosecutor will see it at the ‘early advice’ stage.

Early advice must be sought in cases that are serious, sensitive, or complex cases and always in cases involving a death, rape, or serious sexual offences.

Annex 6 of the DPP’S Guidance on Charging 2020 lists the cases where it is expected that early advice will be sought:

The types of case are listed below;

• cases involving a death;
• rape, serious sexual offences; 
• Modern Slavery and Human Trafficking including cases involving exploitation where charges under the Modern Slavery Act 2015 are under consideration e.g. in the context of “county lines” supply of controlled drugs;
• cases involving an institution with multiple victims;
• complex cases where prosecutor’s review would be over 90 minutes;
• multiple suspects where review is likely to be significantly over 90 minutes;
• cases where a Memorandum of Understanding requires early consultation – the example given is cases involving undercover operatives;
  cases involving requests for International Letters of Request, European Investigation
• Orders and other Mutual Legal Assistance;
  extensive electronic data, multi-media
• evidence, third-party material;
• large scale fraud;
• major police operations e.g. public disorder, public protests, or other civil events;
• cases where the preservation of assets through “Restraint” likely, here referral is CPS POC regardless of case type, size or complexity.

A failure to seek early advice may affect a prosecutor’s ability to make an immediate, effective charging decision because important material or information is missing.

The timing of a request for early advice

This is a matter for the investigating officer but would usually follow a police supervisory review. So initially an officer will speak to their supervisor, key issues will be identified and a decision as to early advice will be made.

Requests should be subject to a police supervisory procedure. This ensures that the advice is necessary, appropriately timed, supported by relevant material, and there is potential for the Full Code Test to be met in due course.

CPS Central Casework Divisions

Investigators should be aware of specific protocols relating to the referral of cases to CPS Central Casework Divisions which will specify the timing of requests for early advice and material to be supplied.

Information required

Referrals are submitted through the digital interface between the police and CPS. The police must supply the following:

• Unique Reference Number (URN);
• summary of facts;
• completed and ongoing or contemplated lines of inquiry;
• anticipated results of ongoing or contemplated inquiries, together with timescales;
• issues identified in case, and any explanation provided by the suspect;
• specific areas of advice sought;
• evidential material that that will facilitate the provision of the relevant advice
• any potentially disclosable material.

Note – a request for early advice is not a request for a charging decision where the amount of material required will be greater.

Role of prosecutor

Prosecutors will assess a request for prosecution advice to determine whether advice is actually required, and whether the timing is appropriate. If a prosecutor rejects a request then the decision will be recorded. A police officer not below the rank of Inspector can appeal the decision.

All the available material need not be provided, but there must be sufficient material for prosecutors to understand all known facts and issues so as to advise accordingly.

However, a prosecutor may ask for additional material or deem that some of the material normally required is not necessary.

Prosecutors will record and share their advice with the police and, where appropriate, create a shared action plan.

No further action (NFA) decisions

If, following early advice and subsequent investigation, the police take the view that there is not a realistic prospect of conviction, the police will inform the CPS accordingly. This is a police decision.

Charging Decisions

If the police feel that the evidential stage is met and the offence is one that must be referred to the CPS for a charging decision, the case must go to the CPS. This applies even if the police propose taking no further action on public interest grounds.

Where the police are of the view that the Full Code Test is not met for an offence where a prosecutor’s authority is required but is met for an offence which can be charged by the police, the police may make the decision to 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 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.