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The Director's Guidance On Charging 2013 - fifth edition, May 2013 (revised arrangements)

Guidance to Police Officers and Crown Prosecutors Issued by the Director of Public Prosecution under S37A of the Police and Criminal Evidence Act 1984

5th Edition: May 2013

(Revised arrangements)

1. Introduction

This revised Guidance is issued under the provisions of section 37A of the Police and Criminal Evidence Act 1984 (PACE) and sets out arrangements prescribed by the Director of Public Prosecutions for the joint working of police officers and prosecutors during the investigation and prosecution of criminal cases. It replaces all earlier editions and incorporates the National File Standard.

In particular, this Guidance sets out:

  • how the police should deal with a person where there is sufficient evidence to charge or where a person has been arrested again having been released on bail awaiting a charging decision by a prosecutor;
  • the offences that can be charged by the police and those where the decision must be made by prosecutors;
  • how and when early investigative advice is to be sought from a prosecutor;
  • the evidence and information needed for a charging decision to be made and for the prosecution of cases at court;
  • the circumstances when a person may be given a simple caution for an indictable only offence, or a conditional caution.

Police officers and prosecutors must comply with this Guidance to ensure that charging and other prosecution decisions are fair and consistent and fully comply with PACE, the PACE Codes of Practice and the Code for Crown Prosecutors.

2. Responsibilities of police officers and prosecutors

The police are responsible for:

  • diverting, charging and referring cases as directed by this Guidance;
  • assessing cases before referral to ensure the Full Code or Threshold Test can be met on the available evidence as appropriate to the circumstances of the case;
  • taking “no further action” in any case that cannot meet the appropriate evidential standard, without referral to a prosecutor;
  • referring specific cases involving a death, rape or serious sexual offence for early advice;
  • completing pre-charge reports and prosecution files as directed by this Guidance and in accordance with the National File Standard;
  • completing action plans and providing key evidence within agreed time periods;
  • ensuring that any unused material which undermines the prosecution case or is capable of assisting the defence is revealed to the prosecutor at the time of referral of the case for investigative advice or a charging decision;
  • ensuring that cases appropriate for an out of court disposal are identified as early as possible and dealt with prior to charge;

Prosecutors will be responsible for:

  • making charging decisions and providing advice and guidance in cases specified by this Guidance;
  • deciding whether it is appropriate to apply the Threshold Test in any case where the prosecutor is responsible for making the charging decision;
  • recording decisions on the MG3 and MG3A;
  • ensuring pre-charge action plans only require the gathering of key evidence and contain agreed timescales for the completion of any work;
  • ensuring that cases appropriate for an out of court disposal are identified prior to charge, and in police charged cases prior to the first hearing.

Operational Arrangements

3. Police duty to investigate offences

The police will undertake effective early investigations to ensure that the key evidence required to make informed decisions in cases is obtained as soon as possible. All reasonable lines of enquiry should be pursued to ensure that any evidence or material likely to undermine the prosecution case or assist the defence is provided to the prosecutor and taken into account during any referral for investigative advice or charging. This will enable relevant key evidence to be obtained, permitting the building of a proportionate file. Compliance with the rigorous case management regime under the Criminal Procedure Rules requires all key evidence to have been provided to the prosecutor prior to the first hearing unless the charging decision has been taken applying the Threshold Test.

4. Police duty to assess evidence before charging or referral

Where a police decision maker considers there may be sufficient evidence to charge they will assess the key evidence to ensure the appropriate Test can be met before proceeding to charge or referring the case to a prosecutor. If the Test is not met and the case cannot be strengthened by further investigation the police will take no further action unless the decision requires the assessment of complex evidence or legal issues.

Where the police proceed to charge in accordance with this Guidance they will assess the case to determine:

  • the evidence which supports the charge;
  • the justification for treating the case as an anticipated guilty plea suitable for sentence in a magistrates’ court (where that is a requirement);
  • the reason why the public interest requires prosecution rather than any other disposal.

Where the police proceed to charge an offence where the suspect has put forward a specific defence or denied the offence in interview the police decision maker will record the reason for doing so on an MG6 and provide a copy to the CPS with the file for the first hearing in the case.

5. Requirement on police to refer cases to prosecutors

If following assessment a police decision maker considers there is sufficient evidence to charge a suspect and the case is one which this Guidance requires to be referred to a prosecutor to determine whether the suspect is to be charged the case shall be so referred. The police decision maker will record on the MG3 a short overview of the reasons why there is sufficient evidence to charge in accordance with The Code for Crown Prosecutors and the application of the Full Code Test or the Threshold Test and why a prosecution would be in the public interest. The custody officer will determine whether the suspect should be detained in custody or released on bail to facilitate the referral. The police will then authorise the case to be referred in accordance with this Guidance at the earliest practical opportunity.

6. Prosecutors’ duty to assess the evidence provided by the police

In making charging decisions and providing early advice, prosecutors will assess the evidential material provided in accordance with this Guidance. Prosecutors will be proactive in identifying and, where possible, rectifying evidential deficiencies and in bringing to an early conclusion those cases that cannot be strengthened by further investigation or where the public interest clearly does not require a prosecution.

7. Early investigative advice

Prosecutors may provide guidance and advice in serious, sensitive or complex cases and any case where a police supervisor considers it would be of assistance in helping to determine the evidence that will be required to support a prosecution or to decide if a case can proceed to court. Specific cases involving a death, rape or other serious sexual offence should always be referred to an Area prosecutor as early as possible and in any case once a suspect has been identified and it appears that continuing investigation will provide evidence upon which a charging decision may be made.

Wherever practicable, this should take place within 24 hours in cases where the suspect is being detained in custody or within 7 days where released on bail. Where a case is referred to CPS at an early stage the prosecutor may determine the information to be provided by the police, the stage at which the evidence will be reviewed and the test to be applied, and this may be in accordance with specific protocols including those relating to cases dealt with by CPS Central Casework Divisions or Group Complex Casework Units.

8. Requirement in all cases to meet the Full Code Test

Police decision makers have an important role in identifying and stopping cases where the Full Code Test (set out in the Code for Crown Prosecutors) cannot be met. Cases should not be charged by the police or referred to prosecutors unless this standard can be met or unless the making of a charging decision in accordance with the Threshold Test is justified. This means the case must be capable, through the gathering of further evidence of meeting the Full Code Test realistic prospect of conviction evidential standard. The police should take decisions to no further action cases before referral unless the decision requires the assessment of complex evidence or legal issues.

Once the evidential stage is met, the Public Interest must be considered before any decision to charge is taken. Where the police make the charging decision, they should also consider the Public Interest in the case. Where the case is to be referred to the CPS for a charge decision, the Public Interest judgement must be made by a prosecutor.

9. Diversion from prosecution – dealing with cases out of court

When considering the Public Interest in any case, consideration will be given as to whether the matter can be appropriately dealt with out of court. What is appropriate in the circumstances of each individual case will depend on the seriousness of the offence, the results of the offending behaviour, the antecedents of the offender and the likely outcome at court. Where an out of court disposal offers an outcome appropriate to the circumstances of the case, it should be considered and any relevant guidance taken into account. Wherever possible, the views of the victim should also be obtained and taken into account. In cases that are referred to a prosecutor for a charging decision, the CPS may recommend the case is dealt with by a simple caution or a conditional caution if that is considered appropriate.

10. Concluding investigations early on Public Interest grounds

Generally, Public Interest decisions should not be taken until sufficient key evidence has been obtained to meet the evidential standard. However, there will be cases where it is clear at an early stage that the Public Interest does not (and will not) require a prosecution. In these rare instances, the police or prosecutors may make an early Public Interest decision that the case should not proceed further.

11. The Threshold Test

Prosecutors will apply the Full Code Test unless the suspect presents a substantial bail risk if released and not all the evidence is available at the time when he or she must be released from custody unless charged. The Threshold Test may be used to charge a suspect who may justifiably be detained in custody to allow evidence to be gathered to meet the Full Code Test realistic prospect of conviction evidential standard.

In any case where the charges under consideration involve a number of offenders which the prosecution would seek to have tried together and the prosecutor determines that it is appropriate to apply the Threshold Test in respect of one or more of those offenders it shall be applied to all offenders to be charged with the joint or related offences.

12. Action where the Evidential Stage of the Threshold Test is not met

Where the prosecutor is not satisfied on either part of the evidential stage, the suspect cannot be charged. The case must then be referred back to the custody officer who will determine whether the suspect may continue to be detained or released on bail or whether the case should be concluded with no further action.

13. Full Code review of cases charged in accordance with the Threshold Test

A decision to charge under the Threshold Test must be kept under review. The evidence must be regularly assessed to ensure that the charge is still appropriate and that the continued objection to bail is justified. The Full Code Test must be applied as soon as is reasonably practical and in any event before any contested hearing and at the very latest before the expiry of any applicable custody time limit or extended custody time limit. Cases must not proceed to trial unless both stages of the Full Code Test are met. In any case charged in accordance with the Threshold Test, a prosecutor will undertake a Full Code Test review prior to any trial hearing and before the expiry of any custody time limit. A full record of this review will be made on the case file.

14. Restrictions on the use of the Threshold Test

Where the police charge either way offences as anticipated guilty pleas suitable for sentence in the magistrates’ court, the requirements of the Full Code Test should always be met. In such circumstances, use of the Threshold Test, even where it is considered appropriate to detain the suspect in custody, is unnecessary. The Threshold Test may not be used to charge a summary only offence that does not carry imprisonment. Where it is used by the police to charge an imprisonable summary only offence the police will record how the Threshold Test requirements are met and how the evidential stage is satisfied. This will be recorded on an MG6 and provided to the CPS with the file for the first hearing.

The division of charging responsibility

15. Police Charging Decisions

The police may charge:

(i) any Summary Only offence (including criminal damage where the value of the loss or damage is less than £5000) irrespective of plea;

(ii) any offence of retail theft (shoplifting) or attempted retail theft irrespective of plea provided it is suitable for sentence in the magistrates’ court; and

(iii) any either way offence anticipated as a guilty plea and suitable for sentence in a magistrates’ court;

provided that this is not:

  • a case requiring the consent to prosecute of the DPP or Law Officer;
  • a case involving a death;
  • connected with terrorist activity or official secrets;
  • classified as Hate Crime or Domestic Violence under CPS Policies;
  • an offence of Violent Disorder or Affray;
  • causing Grievous Bodily Harm or Wounding, or Actual Bodily Harm;
  • a Sexual Offences Act offence committed by or upon a person under 18;
  • an offence under the Licensing Act 2003.

16. CPS Charging Decisions

Prosecutors will make charging decisions in all cases not allocated to the police in paragraph 15. In a case where any offences under consideration for charging include an offence which must be referred to a prosecutor under this Guidance then all related offences in the case will be referred to a prosecutor to consider which should be charged.

17. Determining whether a Guilty Plea may be anticipated

A guilty plea may be anticipated where either:

  • the suspect has made a clear and unambiguous admission to the offence and has said nothing that could be used as a defence, or
  • the suspect has made no admission but has not denied the offence or otherwise indicated it will be contested and the commission of the offence and identification of the offender can be established by reliable evidence or the suspect can be seen clearly committing the offence on a good quality visual recording.

18. Assessing whether the case is suitable for sentence in a Magistrates’ court

A case may be considered suitable for sentence in a magistrates’ court unless:

  • the loss or damage relating to the charge is more than £5000 or would exceed that sum if more than one offence is charged (or taken into consideration), or
  • the overall circumstances of the offence are so serious that the court may decide that a sentence of more than six months imprisonment justifies sending the case to the crown court, or
  • the offence has been committed whilst the suspect was subject to a Crown Court order then in force.

19. Use of Cautions in Indictable Only cases

Where a police decision maker considers that any Indictable Only offence may be appropriately dealt with by means of a simple or Conditional Caution the case must be referred to a prosecutor to determine whether there is sufficient evidence for there to be a realistic prospect of conviction and that it is in the public interest to deal with the case by way of a caution. A prosecutor will only confirm that that is an appropriate outcome in exceptional circumstances and where it fully meets the justice of the case. Such decisions are invariably sensitive and should be referred by a prosecutor to the relevant CPS manager for confirmation prior to notifying the police. A careful note of the reasons for the decision must be made.

The decision to authorise a Conditional Caution in any Indictable Only offence must be approved by a Deputy Chief Crown Prosecutor.

20. Police charging where a prosecutor’s authority cannot be obtained before the expiry of a PACE time limit

A Police Inspector may authorise the charging of an offence referable to prosecutors in accordance with this Guidance where the continued detention of the suspect after charge is justified and where it will not be possible to obtain a prosecutor’s authority to charge before the expiry of any relevant PACE time limit applicable to the suspect. The police should anticipate the PACE custody time limits and seek a charging decision in good time. The police may apply the Threshold Test when charging under this provision. Any cases charged under this provision must be referred to a prosecutor as soon as possible following charge and not later than the time proposed for the first appearance before a magistrates’ court.

21. Prosecutor’s review of police charged cases

The CPS will review all police charged cases prior to the first hearing in accordance with their duty under the Code for Crown Prosecutors. Where it appears that the police have charged a case not permitted by this Guidance, the reviewing prosecutor must consider whether the evidence and material available at that time fully meets the Threshold Test or Full Code Test relevant to the circumstances of the case.

Where it does the prosecutor will continue with the prosecution and record the reason with the case review. Where it does not meet the appropriate Test, the prosecutor should immediately enquire if there is any other material available which has not been provided which may allow the case to continue. Where that is not the case, the prosecution should be discontinued pending the gathering of further evidence and the referral of the case to a prosecutor to make a charging decision.

Where the police have charged a suspect but a prosecutor, acting under Section 10 of the Prosecution of Offences Act 1985 or Section 37B PACE, notifies a custody officer that it is more appropriate to proceed by way of an out of court disposal the custody officer will ensure that the suspect is issued with the appropriate disposal.

22. Consequences of police charging offences not in accordance with this Guidance

An offence charged by the police in circumstances not permitted by this Guidance may amount to a breach of PACE. The decision may be challenged at court and could be subject to judicial review proceedings. It may give rise to liability under the civil law, especially if a suspect has been detained in custody. Where a prosecutor having identified that the police have incorrectly charged a case does not proceed in accordance with this Guidance, the CPS may be in breach of PACE and may become subject to civil liability.

23. Management review of charging decisions and actions

If the police or a prosecutor disagrees with any decision or action proposed following referral of a case the case can be escalated to the first line of management, which for this purpose will be an Inspector or authorised Crown Prosecutor, for a review and resolution of outstanding issues. This review should take place as soon as possible. If this review cannot resolve the issues, the case should be referred to the BCU Commander and Chief Crown Prosecutor or someone nominated on their behalf.

24. Police compliance with decisions made by prosecutors

Where in a case that has been referred to a prosecutor for a charging decision the decision of the prosecutor is to charge, caution, obtain additional evidence, or take no action, the police will proceed in that way unless the case is escalated for management review.

25. Custody officer to provide written notice to suspect on release without charge

Where the 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 provide the person with a notice in writing to that effect. That notice will also specify that a prosecution may be brought if further evidence or information comes to light.

26. Information required for investigative advice and charging decisions

Where a case is being referred to the prosecutor for investigative advice or guidance, the police will provide the material and evidence then available and relevant to the aspect of the case on which the guidance is sought. The police should identify the issues on which guidance is sought, and in more complex cases, this should be done by the completion of a case report or MG3.

The advice or decision of the prosecutor will be set out in an MG3 and an action plan will precisely specify any further work with an agreed date for completion. Where a case is to be referred for a charging decision, the police will compile and submit a pre-charge report comprising:

  • the MG3 which will also contain any confidential information, the views of the investigating officer, and the assessment by the police decision maker and will identify any issues on which the decision of the prosecutor is sought;
  • the key evidence in the case;
  • any relevant exhibits, CCTV, and forensic reports;
  • the DV check list and DASH form in Domestic Violence related cases;
  • PNC print of suspect and key prosecution witnesses previous convictions (including any out of court disposals);
  • any material that has been identified at that stage which may undermine the prosecution case or assist the defence.

In cases where the suspect has made a full admission during interview the specific admissions made will be included in the case summary. This should be accompanied by such key evidence as is required to set out the circumstances of the commission of the offence. Where an investigator considers that although questions have been answered by the suspect but overall the interview is of no evidential value, no record of interview need be provided. In cases where the suspect has made no comment to all questions asked no detailed record of interview is required.

27. Key evidence

Key evidence is that evidence which either alone (the evidence of one witness) or taken together with other evidence (further witnesses or exhibits) establishes the elements of the offence to be proved and that the person to be charged committed the offence with any necessary criminal intent. Where numerous witness statements provide differing evidence relating to the same events, MG11 witness statements should be provided in respect of each witness. Corroborative and procedural statements or continuity evidence should not be provided unless already contained within the statement of a key witness. Other evidence supporting or repetitive of key witnesses is not required with the MG3.

28. Practical arrangements for the referral of cases

In order to ensure a speedy and responsive charging service, referral arrangements for all but the most serious and complex cases will be to CPS Direct. The police will submit pre-charge reports and key evidence across the electronic exchange.

29. Area consultations

Consultations with Area prosecutors will take place in the most serious, sensitive and complex cases. These include;

  • any case involving a death;
  • rape and serious sexual offences;
  • child abuse;
  • large scale or long term fraud;
  • cases with substantial or complex video or audio key evidence;
  • cases expected to take substantially longer than 90 minutes in consultation;
  • any other cases agreed with the CPS.

Area consultations will be facilitated by a local CPS Area specific point of contact. Early contact should take place to agree whether the consultation will be provided in writing, by telephone or face to face and what material is to be submitted to the prosecutor providing the advice or the charging decision.

Such consultations should take place without delay and the police should be informed when the written advice or decision will be provided.

30. Written advice files

The submission of a written advice file must only take place in exceptional circumstances including where there are lengthy ABE interviews with witnesses or complex or lengthy documentary exhibits to be considered. Arrangements for submission of written files should be facilitated by the police contacting the CPS Area or specialist unit prior to submission of any information.

31. Delaying charging and releasing persons suitable for bail

Where the evidence required for referral of the case to a prosecutor is not available custody officers will release those suitable for bail (with or without conditions as appropriate) to allow the referral of the case in accordance with this Guidance. The period of bail should allow for the completion of the investigation and the referral of the case to a prosecutor.

Wherever possible referrals for charging decisions where suspects have been released on bail should be made during normal weekday office hours. Where a person released on bail is subsequently arrested having broken a condition of bail or for failing to surrender to the police station and a custody officer concludes that the person should be detained in custody for early appearance before a court, the custody officer will refer the case to a prosecutor to determine whether the person is to be charged.

32. Information required for prosecution – the National File Standard

Once a case is charged and is to proceed to court, the prosecution file for the first hearing must be proportionate to the requirements of that hearing whilst at the same time providing the prosecutor with sufficient information to be able to conclude the case if the plea is guilty. It must also enable the prosecutor to conduct an effective case management hearing if a not guilty plea is entered. The only exception to this requirement is where the charging decision has been made applying the Threshold Test.

The National File Standard provides for a staged and proportionate approach to the preparation of case files. It specifies the material required for the first hearing and identifies how the file is to be developed at appropriate stages throughout the life of the case. It will provide the prosecutor, the defence and the court with information proportionate and necessary to progress the case. The case management regime provided by the Criminal Procedure Rules requires the court to identify, once a not guilty plea is entered, the precise details of the real issues in dispute in the case.

This will allow for the further proportionate development of the case in preparation for the trial hearing. Operation of effective case management hearings is dependent upon inclusion of the core material within the file for the first hearing which will allow the prosecutor to complete the Case Management Form as required. Unnecessary file build and unnecessary adjournments in cases can be avoided by the strict adherence to this standard. Additional notes relating to specific types of evidence are outlined in Annex A. The MG3 shall be in the form set out at Annex B unless the information is provided by direct input into CMS. The National File Standard is attached at Annex C.

33. Performance Monitoring

The operation of arrangements for the referral of cases will be in accordance with agreed ACPO/CPS Performance Measures. Managers will use the information provided by these measures and including Prosecution Team Performance Management data to assess the efficiency and effectiveness of operation.

34. Implementation

This Guidance will come in to effect on the 6 May 2013.

Keir Starmer QC

Director of Public Prosecutions