How Pre-Charge is Redefining the UK Legal System

How Pre-Charge is Redefining the UK Legal System

Have you heard of pre-charge representation, also known as pre-charge engagement? Do you know about pre-charge bail and the growing popularity of pre-charge solicitor-led efforts to help those who are under investigation but not charged? 

Whether the answer is yes or no, it’s important to keep reading. 

Because while pre-charge representation is quietly transforming the UK legal system, its full potential can only be realised if more people understand what it is and how it works. In this article, we’ll do both while also explaining how-pre charge can benefit anyone who thinks they might be charged with a crime in the UK. 

The Importance of the Pre-Charge Investigation Process 

To put it in simple terms, pre-charge representation provides crucial legal assistance to individuals under police investigation who have not yet been formally charged with a crime.

Being under investigation but not charged, UK lawyers know, can be an unsettling experience. In many cases, completely innocent people had to deal with long periods of uncertainty while they wait for the authorities. Such delays could occur because the police were still gathering evidence or conducting interviews. Alternatively, they may have simply referred the case to the Crown Prosecution Service (CPS) for a decision on whether to proceed with charges. 

Whatever the situation, the waiting period was often excruciating. The accused would often be left asking themselves a lot of difficult questions. 

How long can police keep you under investigation without charging you? If I’m released under investigation, meaning not actually sitting in a holding cell, do I still need representation? What is pre-charge bail, and can it help me? 

Many people are still confused, as pre-charge engagement is a relatively new process. Fortunately, because the process allows for voluntary communication between the legal team and the police after the initial interview but before any charges are made, it can produce some very impressive results. 

For instance, the pre-charge approach allows the accused to discuss the case in detail with legal professionals, potentially identifying additional lines of inquiry that could strengthen their defence and improve their chances of avoiding formal charges. Or, if an offence has been committed, the pre-charge legal team may draft a letter of representation to the police, seeking to resolve the matter without formal prosecution.

 

Before Pre-Charge 

Traditionally, the police were solely responsible for the pre-charge phase of an investigation. Whenever a complaint was made, the police would conduct their investigation, which could include taking statements from the complainant, interviewing the suspect, and gathering various forms of evidence such as witness statements, forensic data, CCTV footage, and digital downloads.

Once the investigation was complete, the police would determine if the case met the evidential threshold required to proceed. If so, the case was typically handed over to the CPS, where a prosecutorial lawyer would decide whether to charge the suspect.

The CPS lawyer’s decision was usually based on the police file, which often recommended charges. However, this process didn’t always allow for a balanced view, as the defence had little opportunity to influence the investigation before the charging decision was made.

 

The UK Attorney General’s Guidance on Disclosure (2020)

The Attorney General’s revised Guidelines on Disclosure came into force on December 31, 2020, and brought significant changes to the pre-charge process in the UK. Indeed, these new guidelines provide a valuable framework for how material relevant to criminal investigations should be handled. More specifically, they focused on the disclosure of evidence from the prosecution to the defence. 

Here are some of the key elements: 

 

Early and Ongoing Disclosure 

For starters, the guidelines emphasize the importance of early and continuous review of any and all materials by the prosecution, ensuring that relevant evidence is disclosed to the defence promptly. This approach aims to promote fairness and avoid unnecessary delays in the legal process.

 

Proportionality 

The guidelines introduced the principle of proportionality, which simply means that the extent of disclosure should correspond to the complexity and seriousness of the case. This is intended to prevent the criminal justice system from being overwhelmed by excessive disclosure demands.

 

Defence Engagement 

The guidelines also encourage the defence to engage more proactively in the disclosure process. In most cases, this means sharing details of their case with the prosecution to help narrow down the focus to only the most relevant material.

 

Digital Material

With the increasing prevalence of digital evidence, the guidelines provide specific instructions on handling and reviewing such material, including using technology to effectively manage large volumes of data. Indecent image solicitors often have to go through Terabytes of data, and it can be difficult to determine what is or is not relevant to an investigation. 

 

Legal Professional Privilege and Public Interest Immunity

Finally, the guidelines clarify how sensitive information should be handled, which aims to balance the need to protect privileged material with the requirement for fairness in the trial process.

 

Pre-charge representation is encouraged by the UK state because it promotes fairness and efficiency in the criminal justice process. By allowing individuals under investigation to have access to legal advice early on, pre-charge representation helps ensure that their rights are protected from the outset. This can prevent misunderstandings or mistakes during the investigation, but it can also streamline the process. 

Bringing cases to trial is expensive, after all, and wrongful convictions are even more costly. Therefore, these changes aim to address issues that have previously led to wrongful convictions or the collapse of trials due to failures in the disclosure process.

How the New Guidelines Relate to Pre-Charge Representation in the UK

The 2020 Attorney General’s Guidance on Disclosure had a huge impact on pre-charge representation. 

For instance, during the pre-charge phase, a suspect’s legal team may seek disclosure of evidence held by the police or prosecution. The 2020 guidance emphasizes the need for early disclosure of material that could assist the defence or undermine the prosecution’s case. Access to this evidence is crucial for effective pre-charge representation, as it allows the defence to make informed decisions and, in some cases, argue against the initial charges.

Likewise, the guidelines support informed decision-making by ensuring that the defence has access to material that could influence the decision to charge. After all, if there is evidence that exonerates the suspect or weakens the prosecution’s case, it should be disclosed early, which could lead to a decision not to proceed with charges. This helps reduce the burden on the court system and can ultimately lead to more efficient use of public resources.

Moreover, by promoting early disclosure, the guidelines also ensure that the defence can effectively challenge any unfair practices that could cause legal trouble for the Crown or investigators down the line. The way the UK government sees it, encouraging pre-charge representation aligns with the principles of justice, ensuring that individuals are treated fairly throughout the investigative process and that the legal system operates both effectively and transparently.

 

The Benefits of the Pre-Charge Engagement Approach 

Let’s assume you become aware that you’re under investigation for a serious offence, such as fraud, assault, or any allegation that could have significant legal or personal consequences. It would make sense to engage a lawyer before any formal charges are made, particularly if that lawyer has the chance to prevent those charges from ever being handed down. 

Indeed, there are three distinct situations in which pre-charge engagement can have distinct, overwhelming benefits for the accused. These include: 

 

Cases Where the Suspect Denies Guilt

Pre-charge engagement is particularly valuable for clients who deny the allegations. Through their solicitors, suspects can suggest additional lines of inquiry, provide details of exonerating evidence, and make pre-charge representations to the police or CPS – anything to reduce the likelihood of charges. 

 

Cases Where the Suspect Accepts Guilt

Many people don’t know that pre-charge can still be beneficial for clients who admit guilt and where there is sufficient evidence to prosecute. In such situations, your legal team can argue for alternatives to court prosecution, such as a caution or community resolution. This is especially effective in cases where mitigating factors like mental health conditions are present.

 

Cases Where Court Proceedings Are Inevitable

Even when prosecution is unavoidable, pre-charge engagement can be used to prepare for mitigation. During the investigation period, lawyers can complete rehabilitative courses, obtain psychological reports, and gather character references, all of which can improve the outcome when the case goes to court.

 

Clearly, pre-charge engagement offers strategic advantages regardless of the circumstances surrounding the investigation. By proactively addressing potential issues and presenting mitigating factors, pre-charge engagement not only enhances the defence strategy but also increases the chances of a more favourable outcome. This is thanks largely in part to the changes handed down in the 2020 Attorney General’s Guidance on Disclosure. 

 

How Holborn Adams Pioneered Pre-Charge in the UK 

Under the leadership of Adam Rasul, Holborn Adams has pioneered pre-charge representation in the UK. With over two decades of experience in criminal and sports law, including ten years running his own practice, Adam’s expertise in pre-charge defence is unmatched. In fact, his personal track record includes a 100% success rate in securing no further action or not-guilty verdicts in pre-charge cases.

As this article has shown, with the right legal strategy, proceedings can end early, without any charges. Still, you can’t enjoy the benefits unless you have an experienced, effective pre-charge solicitor. Though there is no shortage of imitators, Holborn Adams has been at the forefront of this approach from the beginning. With their help, you can rest assured your case is in capable hands.

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