The Director's Guidance on Charging
Guidance to Police Officers and Crown Prosecutors Issued by the Director of Public Prosecutions under S37A of the Police and Criminal Evidence Act 1984
Third Edition: February 2007
- Introduction |
- Key Provisions and Principles of this Guidance |
- Responsibility for determining charges |
- Decisions ancillary to the charging decision |
- Deployment of and role of Duty Prosecutor |
- Decisions not to prosecute |
- Information to be sent to Crown Prosecutors for charging decisions |
- Roles and Responsibilities of Custody Officers under Section 37(7) (a) to (d) PACE, as amended by Schedule 2 to the Criminal Justice Act 2003 |
- Cautions, reprimands and final warnings |
- Breach of Pre-Charge Bail Conditions |
- Police action post referral and escalation procedure |
- Form of Report to Crown Prosecutor for a Charging Decision (MG3) |
- Requirements to Comply with the Manual of Guidance Provisions |
- Notes |
- Introduction
- This Guidance (see note 1) is to enable Custody Officers to decide how a person should be dealt with when:
- The Custody Officer determines there is sufficient evidence (in accordance with the Threshold Test) to charge a person with an offence (see note 2), or
- A person has been arrested for breach of bail who had previously been released on bail for a charging decision (see note 3).
- This Guidance also specifies what information must be sent to a Crown Prosecutor to enable a charging or other decision to be made (see note 4).
- This Guidance applies to those cases the Director of Public Prosecutions is required to take over in accordance with Section 3 of the Prosecution of Offences Act 1985.
- This Guidance will come into effect in those Local Criminal Justice Board Areas and on the dates specified in the schedule hereto.
- Key Provisions and Principles of this Guidance
- Crown Prosecutors will determine whether a person is to be charged in all indictable only, either way or summary offences subject to those cases specified in this Guidance which the police may continue to charge.
- Charging decisions by Crown Prosecutors will be made following a review of evidence in cases and will be in accordance with this Guidance.
- Custody Officers must comply with this Guidance in deciding how a person is to be dealt with in accordance with Section 37(7) PACE, as amended by Schedule 2 to the Criminal Justice Act 2003.
- Crown Prosecutors will seek to identify and resolve cases that are clearly not appropriate for prosecution at the earliest opportunity on consideration of whatever material is available.
- Crown Prosecutors will provide guidance and advice to investigators throughout the investigative and prosecuting process. This may include lines of enquiry, evidential requirements and assistance in any pre-charge procedures. Crown Prosecutors will be pro-active in identifying, and where possible, rectifying evidential deficiencies and in bringing to an early conclusion those cases that cannot be strengthened by further investigation.
- Crown Prosecutors will only require 'evidential reports' (see Paragraph 7.2 (i) below) where it is clear that the case will proceed to the Crown Court or is likely to be a contested summary trial or where it appears to the Crown Prosecutor that the case is so complex or sensitive that a decision to charge cannot be made without an evidential report.
- Where it is necessary, pre-charge bail arrangements will be utilised to facilitate the gathering of evidence, including, in appropriate cases, all the key evidence on which the prosecution will rely, prior to the charging decision being taken (Section 37 (7)(a) and Section 47 (1A) PACE).
- Crown Prosecutors will notify the officer involved in the investigation of any advice and charging or other decision in writing using the form MG3 (Section 37B (4) PACE).
- Persons may be charged whilst in police detention, or in accordance with Section 29 of the Criminal Justice Act 2003 (charging by post) when it is brought into force. [The summons procedure may be used until that change in the process arrangements.]
- Where a Crown Prosecutor notifies a Custody Officers that there is insufficient evidence to charge, or that though there is sufficient evidence to charge, a person should not be charged or given a caution, the Custody Officer shall give notice in writing to that person that he is not to be prosecuted (Section 37B(5) PACE).
- Where Crown Prosecutors decide that a person should be charged with an offence or given a caution, conditional caution, a reprimand or final warning in respect of an offence, the person shall be charged or cautioned, or conditionally cautioned, or given a reprimand or final warning accordingly (Section 37B(6) PACE).
- Where Crown Prosecutors decide that a person should be cautioned but it proves not to be possible to give the person such a caution, the person shall instead be charged with the offence (Section 37B (7) PACE.)
- In order to facilitate efficient and effective early consultations and make charging decisions, Crown Prosecutors will be deployed as Duty Prosecutors for such hours as shall be agreed locally to provide guidance and make charging decisions. This service will be complemented by a centrally managed out of hours duty prosecutor arrangement to ensure a continuous 24 hour service.
- Responsibility for determining charges
- Charging by Crown Prosecutors - the principle
- Crown Prosecutors will be responsible for the decision to charge and the specifying or drafting of the charges in all indictable only, either way or summary offences where a Custody Officer determines that the Threshold Test is met in any case, except for those offences specified in this Guidance which may be charged or cautioned by the police without reference to a Crown Prosecutor.
- Charging by Crown Prosecutors - transitional arrangements
- Establishment of the principle set out in Paragraph 3.1 above will be achieved incrementally and will be notified by further editions of this Guidance.
- Until such notification, the police may determine the charge in any either way or summary offences where it appears to the Custody Officer that a guilty plea is likely and that the case is suitable for sentencing in the magistrates' court, but excluding those specified in Annex A to this Guidance.
- Where the Custody Officer is uncertain whether a case falls under 3.2(iii) above, early consultation with a Duty Prosecutor should be undertaken to clarify whether the charging decision is one that should be made by a Crown Prosecutor.
- Charging by the Police
- Any offence under the Road Traffic Acts or any other offence arising from the presence of a motor vehicle, trailer, or pedal cycle on a road or other public place, except where (and the charge must therefore be determined by a Crown Prosecutor):
- The circumstances have resulted in the death of any person; or
- There is an allegation of dangerous driving; or
- The allegation is one of driving whilst disqualified and there has been no admission in a PACE interview to both the driving and the disqualification; or
- The statutory defence to being in charge of a motor vehicle (unfit through drink or drugs or excess alcohol) may be raised under Section 4(3) or 5(2) of the Road Traffic Act 1988; or
- There is an allegation of the unlawful taking of a motor vehicle or the aggravated unlawful taking of a motor vehicle (unless the case is suitable for disposal as an early guilty plea in the magistrates' court).
- Any offence of absconding under the Bail Act 1976 and any offence contrary to Section 5 of the Public Order Act 1986 and any offence under the Town Police Clauses Act 1847, the Metropolitan Police Act 1839, the Vagrancy Act 1824, the Street Offences Act 1959, under Section 91 of the Criminal Justice Act 1967, Section 12 of the Licensing Act 1872, any offence under any bylaw and any summary offence punishable on conviction with a term of imprisonment of 3 months or less except where (and the charge must therefore be determined by a Crown Prosecutor):
- The Director of Public Prosecutions publishes other arrangements for the charging and prosecution of these offences.
- Review by Crown Prosecutors under Section 10 of the Prosecution of Offences Act 1985
- Combinations of persons and offences
- The application of the Code for Crown Prosecutors
- Number and seriousness of charge(s)
- Application of the Full Code Test
- Application of the Threshold Test to Charging decisions
- Where the evidential material required under Paragraph 7.2 (below) is not available, the Crown Prosecutor (or Custody Officer) will assess the case against the Threshold Test set out in Paragraph 3.10. This should be noted on the MG3 and a review date for a Full Code Test agreed as part of the action plan.
- Subsequently, upon receipt of further evidence or a Report to Crown Prosecutor for a Charging Decision (MG3) accompanied by the information required in accordance with Paragraph 7.2 of this Guidance, the Crown Prosecutor will review the case in accordance with the Full Code Test before deciding whether it is appropriate to continue with the offence(s) charged or prefer additional or alternative charges.
- The Threshold Test
- Police charged cases
- Emergency Cases - Expiry of PACE Time Limits
- Decisions ancillary to the charging decision
- Consultations where it is proposed to withhold bail or impose conditions
- Determination of the court for first appearance
- Special procedure for Persistent Young Offenders
- Deployment of and role of Duty Prosecutor
- Deployment
- Early Consultations
- Evidentially weak cases
- Reviewing the Report to Crown Prosecutor for a Charging Decision (MG3) and evidence.
- Written notice
- Action agreement
- Case referals
- Evidential report
- Decisions not to prosecute
- Insufficient evidence or not in the public interest to charge
- Written notice
- Information to be sent to Crown Prosecutors for charging decisions
- Evidence
- Reports
- All cases proceeding to the Crown Court or expected to be contested: Evidential Report.
- Other cases referred to a Crown Prosecutor for a charging decision
- Custody cases - Threshold Test - expedited report
- Requirement for early consultation in Evidential Report Cases
- Complex or sensitive cases - evidential report
- Case requirements unclear - consult with a Duty Prosecutor
- Roles and Responsibilities of Custody Officers under Section 37(7) (a) to (d) PACE, as amended by Schedule 2 to the Criminal Justice Act 2003
- Requirement for early consultations
- Consultation
- Referrals where the police do not wish to proceed
- The standard to be applied in determining whether the case is to be referred to a Crown Prosecutor or the person released on bail
- Delaying charging and releasing persons suitable on bail
- Disclosure
- Delayed charges
- Cautions, reprimands and final warnings
- Diversion from prosecution, police to caution, reprimand etc
- Consultation on decision to caution
- Actions on conditional caution cases
- Review by Crown Prosecutors
- Decisions to charge or caution by Crown Prosecutors
- Breach of Pre-Charge Bail Conditions
- Action on breach of bail conditions pending CPS charging decision
- Charging breach of bail - emergency situations
- Police action post referral and escalation procedure
- In any case where the Threshold is met and the case has been referred to a Crown Prosecutor for a charging decision, and the decision of the Crown Prosecutor is to charge, caution, obtain additional evidence, or take no action, the police will not proceed in any other way without first referring the matter back to a Crown Prosecutor.
- Dispute resolution
- Form of Report to Crown Prosecutor for a Charging Decision (MG3)
- Form of MG3
- Requirements to Comply with the Manual of Guidance Provisions
- Compliance with Manual of Guidance
- Notes
- Issued by the Director of Public Prosecutions under Section 37(A)(1)(a) of the Police and Criminal Evidence Act 1984, as inserted by the Criminal Justice Act 2003.
- PACE, Section 37(7) as amended.
- PACE, Section 37C.
- PACE, Section 37A(1)(b).
- For example, visually recorded evidence of the crime taking place from which it is possible to clearly identify the offender
What this Guidance is for, where it applies and when it comes into effect.
Statutory provisions and key principles that under-pin this Guidance.
Duty of Crown Prosecutors to determine charge cases.
Transitional arrangements for charging some likely guilty plea cases
Details, with exceptions, of cases the police may charge
The Police may determine the charge in the following cases:
Cases charged by the police to be reviewed by a Crown Prosecutor.
Where by virtue of this Guidance the police determine the charge, that determination and the charge will be subject to a review by a Crown Prosecutor acting under Section 10 of the Prosecution of Offences Act 1985 and under Section 37B of the Police and Criminal Evidence Act 1984 (as amended).
CPS to charge cases delegated to police in certain circumstances.
Where the charges or joint charges to be preferred against one or more persons include a combination of offences, some of which may be determined by the police, and others that must be determined by a Crown Prosecutor, the Custody Officer shall refer all charges to a Crown Prosecutor for determination.
Application of Code for Crown Prosecutors to Custody Officers.
When determining charges, Crown Prosecutors and Custody Officers will apply the principles contained in the latest edition of the Code for Crown Prosecutors.
Charge selection, range and number of charges.
In determining the totality of charges to proceed, the selection of charges should seek to reflect the seriousness and the extent of the offending. It should also provide the court with adequate sentencing powers, and enable the case to be presented in a clear and simple way. Where appropriate, a schedule of other admitted offences may be listed on an MG18 for the charged person to ask the Court to take into consideration.
General application of full Code Test.
In any case where the charging decision is to be made, and the information required to be considered under Paragraph 7.2 (below) of this Guidance is available for review, the standard to be applied in reaching the charging decision will be the Full Test under the Code for Crown Prosecutors: namely (following a review of the evidential material provided) that there is enough evidence to provide a realistic prospect of conviction and that it is in the public interest to proceed.
In cases where it is determined that it would not be appropriate for the person to be released on bail after charge and where the information referred to in Paragraph 7.2 (below) of this Guidance is not available at the time the charging decision has to be taken, a staged approach will then apply:
The Threshold Test for charging in custody cases where an evidential file is unavailable.
When to apply a Full Code Test for Crown Prosecutors in custody cases.
A decision to charge and withhold bail must be kept under review. The evidence gathered must be regularly assessed to ensure the charge is still appropriate and that continued objection to bail is justified. Crown Prosecutors will only apply the Threshold Test for a limited period. The Full Code Test must be applied as soon as reasonably practicable, taking into account the progress of the investigation.
Where however the information specified in Paragraph 7.2 is available at the time that the initial Report to Crown Prosecutor is made, the Full Code Test will be applied.
The Threshold Test
Application of the Threshold Test will require an overall assessment of whether in all the circumstances of the case there is at least a reasonable suspicion against the person of having committed an offence (in accordance with Article 5 of the European Convention on Human Rights) and that at that stage it is in the public interest to proceed.
The evidential decision in each case will require consideration of a number of factors including: the evidence available at the time and the likelihood and nature of further evidence being obtained; the reasonableness for believing that evidence will become available; the time that will take and the steps being taken to gather it; the impact of the expected evidence on the case, and the charges the totality of the evidence will support.
The public interest means the same as under the Full Code Test, but will be based on the information available at the time of charge, which will often be limited.
Application of the above Tests to police charged cases.
Where, in accordance with this Guidance, Custody Officers make the charging decision without referral to Crown Prosecutors, they will apply the Full Code Test. Where the case is one in which it is not proposed to release the person on bail after charge and the evidential material required to apply the Full Code Test is not available, the Custody Officer will proceed to apply the Threshold Test in accordance with Paragraph 3.10 above.
Emergency charging by the police of CPS cases.
In cases where the charging responsibility lies with a Crown Prosecutor in accordance with this Guidance and it is proposed to withhold bail for the purposes of making an application to a court for a remand in custody (or for bail conditions that may only be imposed by a court) but it proves not to be possible to consult with a Crown Prosecutor in person or by telephone before the expiry of any PACE custody time limit applicable before charge, a Custody Officer may proceed to charge, but only on the authority of a Duty Inspector. The Duty Inspector shall note the custody record and MG3 to confirm that it is appropriate to charge under this emergency provision. The case must be referred to a Crown Prosecutor as soon as is practicable for authority to proceed with the prosecution.
Consultations prior to applications to withhold bail at court and short remands to police custody
Whilst decisions to detain or bail persons are exclusively matters for a Custody Officer, where it appears that a person in police detention should not be released and should be detained for the purposes of an application being made to a court for a remand in custody, including short periods in police custody for the purpose of enquiries into other offences, the Custody Officer may wish to consult a Duty Prosecutor to confirm that any proposed application for a remand in custody or the imposition of bail conditions which can only be imposed by a court is justified in accordance with the Bail Act 1976, is proportionate, is likely to be ordered by the court and that sufficient detail to support any such application is recorded on the MG7.
Court selection
When Crown Prosecutors make charging decisions concerning cases that are to be bailed directly to an initial hearing, the Crown Prosecutor will determine whether the case is appropriate for an Early First Hearing Court or an Early Administrative Hearing Court. This will be indicated on the form MG3 with the charge decision.
Special provisions for PYO cases
Crown Prosecutors will be responsible for the decision to charge in all cases involving Persistent Young Offenders unless the charge is one specified in Paragraph 3.3 of this Guidance.
Whenever a person who is, or appears to be, under 18 years of age is taken into custody, the Custody Officer will undertake an immediate check to ascertain whether the person is a Persistent Young Offender.
Where it appears to an Investigating or Custody Officer that the person under investigation may be a Persistent Young Offender, early consultation will be undertaken with the Duty Prosecutor to confirm the likely charges and the evidential requirements in the case. Early consultation will be utilised to proactively manage all Persistent Young Offender cases to secure consistent performance in progressing these cases.
Where it appears that the case will be contested, the Duty Prosecutor and Investigating Officer will agree, as soon as practicable and in any case within 3 days of the arrest on the evidential requirements to progress the case and on a date for the completion of the agreed work, including any pre-charge bail period, taking into account the 71 day target from arrest to sentence for concluding such cases.
Deployment and duty of Crown Prosecutors
Chief Crown Prosecutors will make arrangements for the deployment of Crown Prosecutors to act as Duty Prosecutor in locally agreed locations having regard to the area business and wherever possible on a face-to-face basis, or to be otherwise available for the purposes of fulfilling the CPS's statutory duty. Duty Prosecutors will be available for consultation and will render such early legal advice and guidance, including where appropriate the making of charging decisions as will facilitate the efficient and effective preparation and disposal of criminal prosecutions.
When early advice may be sought by the police
Early consultation and advice may be sought and given in any case (including those in which the police may themselves determine the charge) and may include lines of enquiry, evidential requirements and any pre-charge procedures. In exercising this function, Crown Prosecutors will be pro-active in identifying and, where possible, rectifying evidential deficiencies and identify those cases that can proceed to court for an early guilty plea as an expedited report.
Stopping weak cases early
Early consultation should also seek to identify evidentially weak cases, which cannot be rectified by further investigation, either at that stage or at all, so that these investigations may, where appropriate, be brought to an early conclusion.
Duty Prosecutor's action on receipt of a case
Where Crown Prosecutors receive a 'Report to Crown Prosecutor for a Charging Decision' (MG3) accompanied by the information specified in Paragraph 7.2 below, it is the duty of the Crown Prosecutor to review the evidence as soon as is practicable, having regard to any bail return dates, and decide whether it is appropriate or not, at that stage, to charge the person with an offence or divert them from the criminal justice system.
Written notice of charging or other decision
Once a charging (or other) decision has been made, Crown Prosecutors will give written notice of the decision by completing the second part of the Report to Crown Prosecutor for a Charging Decision (MG3) which will be provided to an officer involved in the investigation of the offence. A copy will be retained by the Crown Prosecutor.
Agreeing an action plan to build a case file
Where during the course of a consultation or following receipt of the Report to Crown Prosecutor for a Charging Decision (MG3) it is clear that a charging decision in the case cannot be reached at that stage, the Crown Prosecutor consulted will advise on the further steps to be taken, including the evidence to be gathered or the statements to be obtained before the decision can be reached and will agree with the investigating officer the action to be taken and the time in which that is to be achieved. This agreement will be recorded on the MG3 and a copy will be provided to an officer involved in the investigation. A copy will be retained by the Crown Prosecutor. In providing such advice, Crown Prosecutors should avoid simply requiring full files to be produced but will specify the precise evidence required or to be sought in accordance with Paragraph 7.2 below. Persons will not be charged until all agreed actions have been completed.
Referrals of cases in special circumstances
Where it appears at an early consultation that the case is of such complexity or sensitivity that it is more appropriate for referral to a specialist unit or prosecutor, or for an individual prosecutor to be allocated to the case from the outset, the Duty Prosecutor, or any Crown Prosecutor consulted, will contact the appropriate Area Unit Head forthwith to make the necessary arrangements.
Building evidential files: use of police pre-charge bail
In cases identified as likely to be contested or to be sent to the Crown Court, Crown Prosecutors will detail the requirements for preparation of an evidential report where that information is not immediately available before a full charging decision can be taken. Where the person is suitable for release on bail the Custody Officer will then bail the person for such a period as is sufficient to allow any agreed action to be completed and the case to be reported to a Crown Prosecutor for a charging decision.
Written notice by Custody Officer of no prosecution
Where the Crown Prosecutor notifies a Custody Officer that there is not sufficient evidence to charge the person with an offence or that there is sufficient evidence but the public interest does not require the person to be charged or given a caution in respect of an offence, the Custody Officer will notify the person in writing to that effect.
Written notice by Custody Officer of no prosecution, but possible further action
Where however it appears to the Crown Prosecutor that should further evidence or information come to light in the future the case may be re-considered under the Code for Crown Prosecutors, the Crown Prosecutor will notify the Custody Officer to that effect who will notify the person in writing accordingly.
Evidence needed to make a charging decision
In making charging decisions, Crown Prosecutors will examine and assess the evidence available before reaching a decision. Wherever possible, Crown Prosecutors will seek to make the decision on the evidence presented to them by the investigator. Where however this is not possible, Custody Officers will arrange for persons to be released on bail, if it is necessary and appropriate to do so, to permit the required information to be provided as soon as is practicable.
Form of reports
The information to be provided by an officer involved in the investigation to a Crown Prosecutor to determine charges will be in the form of the 'Report to a Crown Prosecutor for a Charging Decision' (MG3) and must be accompanied by the following:
Crown Court and likely not guilty cases
Where it is clear that the case is likely to or will proceed to the Crown Court or is likely to be contested, the Report to Crown Prosecutor for a Charging Decision (MG3) must be accompanied by an Evidential Report containing the key evidence upon which the prosecution will rely together with any unused material which may undermine the prosecution case or assist the defence (including crime reports, initial descriptions and any previous convictions of key witnesses).
The Evidential Report must also be accompanied by suggested charge(s), a record of convictions and cautions of the person, and any observations of the reporting or supervising officer.
All other cases
In any other case to be referred to a Crown Prosecutor for a charging decision, the Report to Crown Prosecutor must be accompanied by an Expedited Report containing key witness statements, any other compelling evidence (see note 5) and a summary of an interview. Where the offence has been witnessed by no more than 4 police officers, a key witness statement and a summary of the other evidence may suffice. Whether the summary of the interview or of other police witnesses is to be oral or written will be at the discretion of the Duty Prosecutor concerned.
The Expedited Report must be accompanied by any other information that may have a bearing on the evidential or public interest test, a record of convictions and cautions and any observations of the reporting or supervising officer.
File information in custody cases
Where in accordance with this Guidance and in order to facilitate the making of an application to a court for a remand in custody, a charging decision is to be taken in accordance with Paragraph 3.9 (i) above, the Report to Crown Prosecutor (MG3) must be accompanied by an Expedited Report containing sufficient material then available and brief details of any previous convictions or cautions of the person to allow the Threshold Test to be applied. The Manual of Guidance remand file will be provided for the first and subsequent interim hearings, until the completed Report to Crown Prosecutor, or further evidence referred to in Paragraph 3.9 (ii) above is submitted.
Early consultation in evidential report cases
Early consultation with a Duty Prosecutor should be undertaken to identify those cases in which an evidential file will be required and to agree the timescales for the completion and submission of the Report to Crown Prosecutor for a Charging Decision (MG3). An officer involved in the investigation must submit the completed Report to Crown Prosecutor for a Charging Decision (MG3) within the agreed timescale together with the evidential material referred to in Paragraphs 5.6 and 7.2(i) above.
Complex or sensitive cases
In any case where it appears to a Duty Prosecutor that the case is so complex or sensitive that a decision to charge, or not as the case may be, cannot be made without fuller information, the Report to Crown Prosecutor for a Charging Decision (MG3) must be accompanied by an evidential file and the material mentioned in Paragraphs 5.6 and 7.2(i) above.
When police uncertain about the information required
Where an Investigating Officer considers that a defence may have been raised by a person in interview, or is uncertain whether a person has fully admitted an offence and requires clarification of the information required to accompany the report for a charging decision, early consultation with a Duty Prosecutor should occur to determine whether the case is likely to proceed and to establish the report requirements to facilitate the making of the charging decision.
Early consultation where offence to be charged by CPS
Where it appears likely that a charge will be determined by Crown Prosecutors, Custody Officers must direct investigating officers to consult a Duty Prosecutor as soon as is practicable after a person is taken into custody. This will enable early agreement to be reached as to the Report and evidential requirements and, where appropriate, for any period of bail to be determined to permit submission of the Report to the Crown Prosecutor for a Charging Decision (MG3).
Early decisions
Early consultation with a Duty Prosecutor will allow the early identification of weak cases and those where the charging decision may be made upon consideration of limited information.
Referrals where police do not wish to prosecute where sufficient to charge on Threshold Test
In any indictable only case in which the Threshold Test is met and in which an investigating or supervisory officer decides that he does not wish to proceed with a prosecution, the case must be referred to a Crown Prosecutor to confirm whether or not the case is to proceed. Early consultation in such a case may allow the investigation and preparation of case papers to be curtailed unless the complexity or sensitivity of the case determines otherwise.
Stage at which cases must be referred to a Crown Prosecutor
In determining whether there is sufficient evidence to charge in accordance with Section 37(7) PACE, Custody Officers will apply the Threshold Test set out in Paragraph 3.10 above. Where, in any case, it appears that there is manifestly no evidence and the Threshold Test is not met in respect of a detained person, the Custody Officer need not refer the case to a Crown Prosecutor before releasing that person, whether on bail or otherwise. In any case where this Guidance requires charges to be determined by Crown Prosecutors and a Custody Officer concludes that the Threshold Test is met, the Custody Officer will ensure that the case is referred to a Crown Prosecutor as soon as is practicable, or, where the person is suitable for bail, release the person detained on pre-charge bail, with or without conditions, in accordance with Section 37(7)(a).
Application of police pre-charge bail
In any case where this Guidance requires charging decisions to be made by Crown Prosecutors and the required information is not then available, Custody Officers will release those persons suitable for bail (with or without conditions as appropriate) to allow for consultation with a Crown Prosecutor and the submission of an evidential report for a Charging Decision (MG3) in accordance with this Guidance.
Early disclosure to defence
The period of bail should be such as to allow the completion of the investigation, submission of a Report to a Crown Prosecutor for a Charging Decision (MG3), for the person to be charged, and for early disclosure of the evidence and any unused material referred to in Paragraph 7.2 to be provided to the defence prior to the first appearance.
Delayed charges - other reasons
Where a Custody Officer determines that there is sufficient evidence to charge a person but concludes that it is not appropriate at that stage to charge the person with an offence or to seek a charging decision from a Crown Prosecutor and proposes to release the person from police custody in accordance with Section 37 (7)(b) PACE, the person may only be released on unconditional bail. The Custody Officer should record the reasons for so acting.
Where the police consider that the Threshold Test is met in a case, other than an indictable only offence, and determine that it is in the public interest instead to administer a simple caution, or to administer a reprimand or final warning in the case of a youth, the police may issue that caution, reprimand or final warning as appropriate, without referring the case to a Crown Prosecutor.
Notwithstanding the above, an investigating officer may wish to consult with a Crown Prosecutor in respect of any case in which it is proposed to deal with a person by way of a caution, reprimand or final warning.
Where a conditional cautioning scheme is in force locally and the police wish to conditionally caution any person for an offence, the Custody Officer must refer the case to a Crown Prosecutor for decision.
Where in accordance with this Guidance, the police have determined to initiate proceedings against a person by way of a charge, and a Crown Prosecutor, acting under Section 10 of the Prosecution of Offences Act 1985 and Section 37B of the Police and Criminal Evidence Act 1984 (as amended) notifies a Custody Officer that it is more appropriate to proceed by way of a conditional caution (if a scheme is in force locally), simple caution, reprimand or final warning, the Custody Officer will ensure that the person is given a conditional caution, simple caution, reprimand or final warning as appropriate.
Crown Prosecutors, when undertaking a charging review in accordance with this Guidance, may determine that a charge, conditional caution (if a scheme is in force locally), simple caution, reprimand or final warning is appropriate. Written notice of the decision will be given to the Custody Officer on an MG3. Where it subsequently proves not to be possible to give the person a conditional caution (if this scheme is enforced locally), simple caution, reprimand, or final warning, the matter will be referred back to the Crown Prosecutor to determine whether the person is instead to be charged with the offence.
Where a person is released on bail pending a CPS decision on charge or re-released following arrest for breach of a condition of bail for that purpose [under Section 37(7)(a) or 37C(2)(b) PACE,] and that person is subsequently arrested under Section 46A (1A) PACE on reasonable grounds of having broken any of the conditions of bail, or for failing to surrender to bail at the police station, and a Custody Officer concludes that the person should be detained in custody for the purpose of an application to the court for a remand in custody, the Custody Officer will consult a Crown Prosecutor for a decision as to whether to charge with the offence for which the person had previously been released on bail or with any other offence or be released without charge either on bail or without bail.
In any such case where it has proved not to be possible to consult with a Crown Prosecutor in person or by telephone before the expiry of any PACE custody time limit and it is proposed to withhold bail for the purposes of an application for a remand into custody (or for bail conditions that may only be imposed by the court) a Custody Officer may proceed to charge, but only on the authority of a Duty Inspector. The Duty Inspector shall note the custody record and MG3 to confirm that it is appropriate to charge under the emergency provisions. The case must be referred to a Crown Prosecutor as soon as is practicable for authority to proceed with the prosecution.
Police action post referral
Where in any case an Investigating or Custody Officer is not in agreement with the charging decision, the Report requirements or any diversion proposal of a Crown Prosecutor and wishes to have the case referred for further review, the case must be referred to the BCU Crime Manager (normally Detective Chief Inspector), or appointed Deputy, for consultation with a CPS Unit Head, or appointed Deputy for resolution. If further escalation is required, the involvement of the Divisional Commander and the Level E Unit Head or Chief Crown Prosecutor should be obtained. Procedures should be in place for this review to be conducted speedily.
The Report to Crown Prosecutor for a Charging Decision to be used will be the form MG3, a copy of which is attached at Annex B to this Guidance. The Manual of Guidance Editorial Board may vary this form from time to time.
All consultation arrangements and procedures for the preparation, processing and submission of prosecution files and the disclosure of unused material will be carried out in accordance with the provisions of the latest edition of the Manual of Guidance as agreed between the Home Office, Association of Chief Police Officers and the Crown Prosecution Service.
Ken Macdonald QC
Director of Public Prosecutions