New guidelines take effect in the next few weeks, which will promote pre-charge engagement between the defence and police.
What is pre-charge engagement?
Pre-charge engagement refers to voluntary engagement between the parties to an investigation after the first police (PACE) interview (irrespective of whether the interview takes place with a suspect under arrest or voluntary interview), and before any suspect has been formally charged. Pre-charge engagement is a voluntary process and it may be terminated at any time. It does not refer to engagement between the parties to an investigation by way of further PACE interviews. Should a suspect choose not to engage at this stage, that decision should not be held against him at a later stage in the proceedings.
Pre-charge engagement is encouraged by the Code for Crown Prosecutors and may impact decisions as to charge (para 3.4 Code for Crown Prosecutors).
Pre-charge engagement may, among other things, involve:
a. Giving the suspect the opportunity to comment on any proposed further lines of inquiry.
b. Ascertaining whether the suspect can identify any other lines of inquiry.
c. Asking whether the suspect is aware of, or can provide access to, digital material that has a bearing on the allegation.
d. Discussing ways to overcome barriers to obtaining potential evidence, such as revealing encryption keys.
e. Agreeing any key word searches of digital material that the suspect would like carried out.
f. Obtaining a suspect’s consent to access medical records.
g. The suspect identifying and providing contact details of any potential witnesses.
h. Clarifying whether any expert or forensic evidence is agreed and, if not, whether the suspect’s representatives intend to instruct their own expert, including timescales for this.
When is pre-charge engagement appropriate?
It may take place whenever it is agreed between the parties that it may assist the investigation. Where a suspect is not yet represented, an investigator should take care to ensure that the suspect understands their right to legal advice before the pre charge engagement process commences. Sufficient time should be given to enable a suspect to access this advice if they wish to do so.
A no comment interview does not preclude the possibility of pre-charge engagement.
What are the benefits?
There are a number of potential benefits that may arise from pre-charge engagement:
a. Suspects who maintain their innocence will be aided by early identification of lines of inquiry which may lead to evidence or material that points away from the suspect or points towards another suspect.
b. Pre-charge engagement can help inform a prosecutor’s charging decision. It might avoid a case being charged that would otherwise be stopped later in proceedings, when further information becomes available.
c. The issues in dispute may be narrowed, so that unnecessary inquiries are not pursued, and if a case is charged and proceeds to trial, it can be managed more efficiently.
d. Early resolution of a case may reduce anxiety and uncertainty for suspects and complainants.
e. The cost of the matter to the criminal justice system may be reduced, including potentially avoiding or mitigating the cost of criminal proceedings.
All of our team are trained in these new guidelines and will in appropriate cases engage with the police pre-charge in order to secure best outcomes.
How can we help?
If you would like to discuss any aspect of your case, please contact Peter Haney in our Crime Team on 01514805777