The criminal justice system is crippling at its knees, with inspectors reporting a significant backlog in cases. This includes 50,000 in the crown court alone, with trials being listed in 2022.

The new Attorney General Guidelines are found at Annex B 2020 and have been put in place to promote pre-charge engagement between the defence and prosecution. (See next page)

It seems on the outset that this is an unusual step. We work in an adversarial system, which can aid individuals to receive justice.

The engagement process may impact and influence decisions to prosecute or not and is encouraged by the code for crown prosecutors. (Paragraph 3.4 Crown Prosecutors)

Lord Chancellor Robert Buckland QC quotes: – “Early engagement between the prosecution and the defence is crucial to ensuring cases progress quickly, reducing delays and benefiting the criminal justice system as a whole.”

This process is VOLUNTARY and will commence after the first police (PACE) interview and before a suspect is charged.

The voluntary engagement can be withdrawn at any point and does not form part of any further subsequent interview under caution.

If a suspect does not engage in this process, it should not be held against them in any subsequent court proceedings.

A ‘no comment’ interview does not preclude any possibility of pre-charge engagement.

If unrepresented at the interview stage, a suspect should seek specialist legal advice in respect of this.

Pre-Charge engagement discussions can take place either face to face or via written correspondence. A written and a signed record of all discussions should be made.

Investigating officers should be wary though as to adverse inferences under section 34 of the Criminal Justice and Public Order Act 1994. These are not available at trial where a suspect has failed to mention a fact when asked about it in pre-charge engagement.

An adverse inference may only be drawn where a suspect fails to mention a fact whilst being questioned under caution.
police officers

The list as to what pre-engagement includes is found in the Attorney General Guidelines at Annex B, Section 4. It describes: –

  • Giving the suspect the opportunity to comment on any proposed further lines of inquiry.
  • Ascertaining whether the suspect can identify any other lines of inquiry.
  • Asking whether the suspect is aware of, or can provide access to, digital material that has a bearing on the allegation.
  • Discussing ways to overcome barriers to obtaining potential evidence, such as revealing encryption keys. (In some circumstances, this may be an offence to fail to disclose.)
  • Agreeing any keyword searches of digital material that the suspect would like carried out.
  • Obtaining a suspect’s consent to access medical records.
  • The suspect identifying and providing contact details of any potential witnesses.
  • 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.

lawyers office

The benefits identified in Annex B, Section 10 are described as: –

  • 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.
  • 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.
  • 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.
  • Early resolution of a case may reduce anxiety and uncertainty for suspects and complainants.
  • The cost of the matter to the criminal justice system may be reduced, including potentially avoiding or mitigating the cost of criminal proceedings.
  • At the time of this article there is currently no legal aid funding in place for pre charge engagement work to be carried out.
    This service is however available on a private basis and is likely to influence a decision not to prosecute. We specialise in voluntary police interviews on a daily basis.

    If you find yourself being investigated for a criminal allegation and require specialist pre charge engagement legal advice please get in touch with our team on our 24-Hour number of 0800 2335822.