Guidance on Charging and the Charging Standard

The decision to charge a suspect with a criminal offence is governed by strict legal and procedural frameworks. At Clifford Johnston & Co., we have extensive experience in navigating these frameworks, ensuring that charging decisions are fair, consistent, and compliant with the law.

Our in-depth knowledge of the Code for Crown Prosecutors and the Director of Public Prosecution’s Guidance on Charging (2020) enables us to challenge cases effectively and achieve positive outcomes for our clients.

Engaging Clifford Johnston & Co. at the earliest stages of a criminal investigation can be the decisive factor in alleviating concerns before they escalate to criminal charges. Our pre-charge specialists have an exceptional working knowledge of the Guidance for Charging and the Charging Standard. This forms the foundation of our proactive defence strategy and sets us apart from other defence teams.

What Is the Charging Standard?

The Charging Standard is the test applied by prosecutors to determine whether a case should proceed to court. Contained within the 2018 Code for Crown Prosecutors, it sets out two key criteria:

1. Evidential Test: There must be a realistic prospect of conviction. This means that an impartial, reasonable jury, magistrates, or judge, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the alleged offence.
2. Public Interest Test: Even if the evidential test is satisfied, the prosecution must demonstrate that pursuing the case is in the public interest. Factors include the seriousness of the offence, the harm caused, and the suspect’s circumstances.

The Relationship Between the Charging Standard and the Guidance

The Director of Public Prosecution’s Guidance on Charging provides a detailed roadmap for investigators and prosecutors to follow when building cases and making charging decisions. First issued on 31st December 2020, the Guidance was published alongside provisions for pre-charge engagement, as outlined in Annex B of the Attorney General’s Guidelines on Disclosure 2020. The most recent updates, introduced in May 2024, emphasise the importance of efficiency and fairness at every stage of the process.

At Clifford Johnston & Co., we recognise the critical relationship between the Charging Standard and the Guidance on Charging. This enables us to scrutinise charging decisions, hold investigators accountable, and advocate for cases to be resolved at the pre-charge stage wherever possible.

Areas Covered by the Guidance

The Guidance on Charging outlines a comprehensive framework for investigators and prosecutors. Key areas include:

• The Charging Process: Steps required to ensure cases meet evidential and public interest thresholds.
• The Full Code Test: Detailed guidance on applying the evidential and public interest tests.
• The Threshold Test: Criteria for charging suspects when evidence is incomplete but further investigation is ongoing.
• Obtaining Prosecutorial Advice: Procedures for investigators seeking advice from CPS prosecutors.
• Out-of-Court Disposals: Alternatives to prosecution, such as cautions, restorative justice and/or community resolutions.
• The National File Standard: Requirements for the material investigators must submit to prosecutors for charging decisions.
• Post-Charge Case Management: Steps for ensuring that cases progress efficiently and fairly after a charge is filed.
• Digital Interface Procedures: Processes for submitting charging referrals and required materials electronically.
• Early Advice in Complex Cases: Recommendations for seeking CPS input during the early stages of investigations.

Understanding these provisions is essential to a proactive and engaged defence strategy. Our solicitors leverage this knowledge to hold investigators accountable, ensuring they meet their obligations to pursue all reasonable lines of enquiry, even those that point away from the suspect.

Types of Evidence Addressed by the Guidance

The Guidance provides detailed instructions on handling various types of evidence, including:

• Audio-Visual Evidence: Requirements for collecting and presenting video and audio recordings.
• Bad Character Evidence: Parameters for using evidence of a suspect’s previous conduct.
• Communication Evidence: Standards for assessing emails, texts, and social media content.
• Forensic Evidence: Guidelines for the collection and analysis of forensic materials.
• Identification Evidence: Protocols for witness identification of suspects.
• Medical Evidence: Proper procedures for obtaining and using medical records.

By adhering to these standards, investigators and prosecutors aim to ensure cases are robust and procedurally sound. Our Criminal Investigation Solicitors are highly skilled in identifying and challenging any failure to comply with these requirements, often securing early resolutions in weak cases.

Proactive Use of the Guidance

At Clifford Johnston & Co., we use the Guidance on Charging as a powerful tool in our proactive defence strategy. One critical aspect of our approach is monitoring investigators’ compliance with the Guidance to ensure that our clients are treated fairly and consistently throughout the process. We also scrutinise the case to identify situations where evidence or further material is unlikely to affect the outcome. In such instances, we actively advocate for the case to be discontinued, preventing unnecessary delays and stress for our clients.

Additionally, we carefully examine cases for weaknesses and/or procedural failures, such as incomplete disclosure or a failure to explore alternative lines of enquiry. By addressing these issues promptly, we ensure that investigations remain focused on their primary objective: determining whether the Charging Standard is met. If a weak case has been allowed to persist unnecessarily, our team will intervene and do everything possible to bring the matter to an early conclusion.

Why This Matters for Investigators and Defence Teams

The Guidance on Charging emphasises the overarching principle of “getting it right first time,” as outlined in Sir Brian Leveson’s review of efficiency in criminal proceedings. This principle requires investigators and prosecutors to build cases methodically and ensure that all charging decisions comply with legal standards, including the Police and Criminal Evidence Act (PACE) and the PACE Codes of Practice.

While the Guidance is primarily issued for investigators and prosecutors, it is equally relevant for defence teams. At Clifford Johnston & Co., we use our detailed understanding of these provisions to hold investigators to account and advocate for early case resolutions.

Challenging Charging Decisions

Our criminal defence solicitors specialise in challenging flawed and/or premature charging decisions. We do this by:

• Arguing that the evidential test is not met due to weak, inadmissible, or unreliable evidence.
• Highlighting why a prosecution would not serve the public interest, particularly in minor or technical cases.
• Presenting compelling representations against charge, supported by robust evidence and legal arguments.

This proactive approach helps prevent unwarranted charges and spares clients the stress and cost of unnecessary court proceedings.

Why Choose Clifford Johnston & Co.?

Clifford Johnston & Co. has over 30 years of experience in criminal defence, with a proven track record of securing early resolutions for clients. Our expertise in the Charging Standard and the Guidance on Charging sets us apart, enabling us to provide robust representation at every stage of the criminal justice process.

We are committed to protecting your rights, your reputation, and your future.

Contact Our Pre-Charge Defence Solicitors

If you are facing a potential criminal charge, take action today. Clifford Johnston & Co. provides expert legal advice and proactive representation to influence investigations and secure the best possible outcome.

We are located in Stockport (Cheshire) and Manchester, but we represent clients throughout the Northwest and across the whole of England & Wales.

For confidential and expert advice and support, contact our Criminal Lawyers today. Together, we can help you move forward with confidence.