The power of proactivity in criminal defence

What happens when someone gets arrested? People tend to believe the arrest is made, there’s an investigation by the police, the Crown Prosecution Service makes a decision and if they’re charged, then they fight their case in court. The truth is, it needn’t and shouldn’t be this straightforward.

When it comes to defending people in serious criminal cases, many lawyers believe in keeping their cards close to their chest for as long as possible, going through the motions as dictated by the police and CPS. However, by taking a proactive approach with a good dose of initiative, criminal lawyers have the power to transform the course of action – sparing a client – and often the referring solicitor – the stress and trauma of court proceedings.

Pre-charge engagement

The concept of ‘pre-charge engagement’ isn’t new, but was formally recognised less than 12 months ago when it was contained within the Attorney General’s Guidelines on Disclosure, which came into force on 31 December 2020. The same day also saw the publication of the Director of Public Prosecution’s Guidance on Charging 2020.

This recognition is long overdue. Proactivity ensures that fewer weak cases are taken to court – and the ability to cross-reference engagement with the Director of Public Prosecution’s Guidelines on Charging strengthens the defence position in terms of strategic decisions.

What does it involve?

For anyone facing any kind of criminal investigation, it is crucial that their legal representative is actively committed to a strategy involving early, proactive pre-charge engagement with investigators. Throughout an investigation, the defence team should maintain contact with investigating officers, using this valuable time to understand the full extent of the case against the client while simultaneously undertaking defence enquiries that support their case. Put simply, if there are representations that the defence can make in relation to why their client shouldn’t be charged with a criminal offence, they should be made.

Pre-charge engagement refers to any voluntary engagement between parties to an investigation after the first interview under caution. It involves activity such as giving a suspect an opportunity to comment on further lines of enquiry, asking whether they can provide access to digital material or identify and offer details of potential witnesses.

 Why do it?

The ultimate objective, in appropriate cases, is to make representations against charge by arguing that there is not a “realistic prospect of a conviction” or that a prosecution is not in the public interest. This may involve drawing attention to material that supports the defence case, such as texts, emails and other electronic communication, more commonly social media activity, enquiries into CCTV or medical evidence. Wherever possible, the aim is to draw investigators’ attention to information that supports the case.

A true defence practitioner should always look to provide the police or other investigators with sufficient material so as to prevent a client being charged. Unfortunately, though, this isn’t always the case – primarily due to lack of funding, lack of education – and the fact that the window for representation is considered to be an informal one rather than a formal stage of the process.

The way ahead

Things are evolving and moving in the right direction – one major positive to come from lockdown was that the closure of courts provided a catalyst for a more openminded approach towards pre-charge engagement. While trials have been delayed, the police and prosecution have had the opportunity to engage in more pre-charge discussions. And, with less time spent in court, there was more time to focus on the work that’s undertaken after the police station, prior to a charging decision being made.

Now restrictions have lifted and we’re on the road to some sort of ‘normality’, a sector-wide commitment must be made to leverage the power of proactivity in criminal law. I’d implore any non-criminal solicitor whose client faces a criminal investigation to insist on a proactive approach when reaching out to a defence team. It not only benefits the individual, but saves police time and averts any ‘why was this not disclosed pre-charge?’ queries from the justice system further down the line.

Matthew Claughton is a criminal defence solicitor and managing director of Olliers Solicitors: olliers.com