PCD Solicitors are extremely passionate about establishing a clients defence early on in their case with a view to avoiding not only the prosecution of our clients but, to also avoid the stress, anxiety and any reputational damage. Our view is therefore, that if representations to police can be made and defence evidence submitted that would prove pertinent to any case, then it should be.
The 2018 amended Code for Crown Prosecutors makes it clear that when a Crown Prosecutor is making a charging decision, not only must they look at the evidence and information provided to them by the police or other investigators but also look at evidence provided by the suspect or their solicitors. The prosecutor may even invite the suspect to make representations in certain cases where it is appropriate, to determine the correct course of action in progressing the case.
The Crown Prosecution Service (CPS) should only charge firstly if there is a realistic prospect of conviction and secondly, that it is in the public interest. To determine whether there is a realistic prospect of conviction the CPS must take a look at the evidence. Evidence and the strength of it differs in every case, evidence can arise from one persons word against another, medical evidence, scientific evidence (forensic reports) and third party witness statements. The suspect and their solicitors are able to submit evidence where appropriate at this stage for their case, this evidence can be in the form of the suspects account, witness statements, third party material, phone records and any other relevant material. The Crown Prosecutor will then not only have the material afforded to them by the investigating officer, but also the suspect, enabling a fair charging decision to be made.
Pre Charge Engagement
A pre charge engagement with the CPS is supported by the Attorney General’s Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System 2018. The Attorney General's advice is clear within the review in that both the prosecution and defence should work collectively to identify issues as early as possible in a case. From a defence point of view this may be any evidence that supports that the complainant is not credible or that their account is inconsistent. The aim of this approach is to improve the proactiveness of a case going forwards and any ongoing disclosure that may be relied upon by the parties.
Disclosing information through representations to police and supporting evidence should be done so very carefully and with legal advice being sought first. A suspects legal representative is able to make the necessary enquiries with the police prior to serving any defence material to ensure it would be in the suspects best interests. All suspects have a right to silence and there will be circumstances where this should be exercised. However, all suspects are warned when given a police caution that failure to mention something when questioned that they seek to rely on in court could draw adverse inferences upon a defendant by a jury. The following are examples where making representations to the police/CPS may assist a suspect:
- Providing digital evidence or mobile phone evidence to support a suspects account.
- Investigators and defence representatives can agree a summary of lines of enquiry arising from an interview.
- Standard questions used by interviews identifying common disclosure issues and barriers, for example, encryption keys.
PCD Solicitors experience first hand every day the need to work with officers to ensure the correct lines of enquiry are followed. A recent case we have robustly defended concerning an allegation of attempt oral rape whereby text messages sent by the complainant and recordings taken by a complainant are vital evidence to the defence case. As a result of our ability to build a rapport with the senior investigating officer, we were able to raise at the outset the potential evidence which would not have been obtained had we not informed police of the need for the complainant's mobile phone to be examined. As a result of said examination it transpired the complainant had deleted this vital supporting defence evidence from her mobile phone amongst other important details which have been erased, we suggest as an attempt to conceal certain important aspects of the case.
Successful representations and pro active work by a suspects solicitors does result in less charging decisions being made. PCD Solicitors continue to maintain a 100% success rate in achieving no further action in cases concerning allegations of historical sexual abuse, rape and attempted rape where we have been instructed at the outset of the police investigation from August 2020.
Funding pre charge engagement
It is extremely unfortunate that legal aid funding for pre charge engagement is non existent. It is unrealistic to believe that such work could be covered by the very low amount of funding provided to legal aid lawyers by the government. PCD Solicitors spend hours on the preparation and representation of cases at the pre charge stage, it is arguably the most important stage of any criminal case and this can only be done on a privately paying basis. The work of a legal aid solicitor at the police station stage of a case generally stops when the suspect leaves the police station. Whether or not this will change going forwards we do not know but it is certain that the a pro active approach early on reduces the costs for the public, the police, CPS and courts.
What we can do for you
Following instruction from clients at the outset of their case we firstly make contact with the investigating officer. We take over all correspondence and immediately start to build that rapport with the investigating officer to enable us obtain full disclosure. We then work with our client's to address the disclosure provided, take their account and assess any supporting evidence. The approach we then take can vary and is dependent on all information presented by both parties.
If you would like to discuss the particular circumstances of your case, a friends or family members, please contact one of our specialist lawyers today for free and confidential initial advice.