The Director Revenue and Customs Prosecutions Office - guidance on charging
Second edition
March 2007
This guidance has applied to investigations instigated by the serious Organised Crime Agency (SOCA) from 1 April 2006 and continues to apply.
It will apply to investigations instigated by HM Revenue & Customs (HMRC) from 3 april 2007
Guidance issued under section 37a of the Police and Criminal Evidence Act 1984
1. Introduction
What this Guidance is for, where it applies and when it comes into effect:
1.1 This Guidance (note 1) is to enable Custody Officers (note 2) to decide how a person should be dealt with when:
(Note 1: Issued by the Director of the Revenue and Customs Prosecutions Office under Section 37(A)(1)(a) of the Police and Criminal Evidence Act 1984 ("PACE"), as inserted by the Criminal Justice Act 2003 as amended by the Commissioners for Revenue and Customs Act 2005).
(Note 2: All references in this Guidance to Custody Officers refer to Police Custody Officers).
• The Custody Officer determines there is sufficient evidence to charge a person with an offence (note 3) (in accordance with the evidential limb of the Threshold Test as set out in paragraph 8.3 below) or
• A person has been arrested for breach of bail who had previously been released on bail for a charging decision (note 4).
(Note 3: PACE, Section 37 (7) as amended).
(Note 4: PACE, Section 37C).
1.2 This Guidance also specifies what information must be sent to a Revenue and Customs Prosecutor to enable a charging or other decision to be made (note 5).
(Note 5: PACE, Section 37A(1)(b) & Commissioners for Revenue and Customs Act 2005, Section 50 and Schedule 4, Paragraph 30).
1.3 This Guidance has applied since 1 April 2006 to investigations instigated by SOCA (note 6). It continues to apply to these investigations. It will apply with effect from 3 April 2007 to investigations instigated by HMRC.
(Note 6: Which are investigations relating to designated offences pursuant to Sections 38(7)(b) & 39(1) of the Serious Organised Crime and Police Act 2005).
2. Key Provisions and Principles of this Guidance
Statutory provisions and key principles that under-pin this Guidance:
2.1 Revenue and Customs Prosecutors will determine whether a person is to be charged in all indictable only, either way or summary offences.
2.2 Charging decisions by Revenue and Customs Prosecutors will be made following a review of evidence in cases and will be in accordance with this Guidance.
2.3 Custody Officers must comply with this Guidance in deciding how a person is to be dealt with in accordance with PACE, Section 37(7) (note 7).
(Note 7: As amended by Schedule 2 to the Criminal Justice Act 2003 and Section 11 of the Police and Justice Act 2006).
2.4 Revenue and Customs Prosecutors will seek to identify and resolve cases that are clearly not appropriate for prosecution at the earliest opportunity on consideration of whatever evidential material is available.
2.5 Revenue and Customs Prosecutors will provide guidance and advice to investigators throughout the investigative and prosecuting process (note 8). This may include advising on lines of enquiry, evidential requirements and pre-charge procedures (note 9). Revenue and Customs 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.
(Note 8: Serious Organised Crime and Police Act 2005, Section 38(2) and Commissioners for Revenue and Customs Act 2005, Section 35(2)).
(Note 9: Note that advice will not be given as to whether material obtained or about to be obtained under a warrant or order is protected by legal professional privilege. Revenue and Customs Prosecutors will not make applications at court for search warrants or production orders).
2.6 Revenue and Customs Prosecutors will only require a full file of evidential material 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 Prosecutor that the case is so complex or sensitive that a decision to charge cannot be made without a full file of evidential material.
2.7 Wherever possible, 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 (note 10).
(Note 10: PACE, Sections 37 (7)(a) & 47 (1A)).
2.8 Whenever practicable SOCA/HMRC Investigating Officers, Custody Officers and Revenue and Customs Prosecutors should use the form at Annex A when requesting or communicating charging or other decisions.
2.9 Persons may be charged whilst in 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.
2.10 Where a Revenue and Customs Prosecutor notifies a Custody Officer that there is insufficient evidence to charge or that, though there is sufficient evidence to charge, a person should not be charged, given a caution, a conditional caution (note 11), a reprimand or a final warning in respect of an offence, the Custody Officer shall give notice in writing to that person that he is not to be prosecuted (note 12).
(Note 11: Conditional cautioning is not currently available in respect of Charging Decisions made by Revenue and Customs Prosecutors. All references to conditional cautioning in this guidance have been italicised to reflect this. The Director Revenue and Customs Prosecution s Office will issue a notice when conditional cautioning applies to Charging Decisions made by Revenue and Customs Prosecutions Office).
(Note 12: PACE, Section 37B(5)).
2.11 Where a Revenue and Customs Prosecutor decides that a person should be charged with an offence, given a caution, a conditional caution, a reprimand or a final warning in respect of an offence, the person shall be charged, cautioned, conditionally cautioned, given a reprimand or a final warning, accordingly (note 13).
(Note 13: PACE, Section 37B(6)).
2.12 Where a Revenue and Customs Prosecutor decides that there is sufficient evidence to prosecute a person for an offence and that it would be in the public interest to do so, but that the matter can properly be dealt with by way of compounding or HMRC civil disposal, the Custody Officer must not charge the person with the offence unless later notified by the Revenue and Customs Prosecutor that he must do so.
2.13 Where a Revenue and Customs Prosecutor decides that a person should be cautioned, conditionally cautioned, or given a reprimand or final warning, but it proves not to be possible to give the person such a caution, conditional caution, reprimand or final warning, the person shall instead be charged with the offence (note 14).
(Note 14: PACE, Section 37B(7)).
2.14 Revenue and Customs Prosecutors will be deployed as Duty Prosecutors outside normal office hours to make charging decisions to ensure a continuous 24 hour service.
3. Responsibility for determining charges
Duty of Revenue and Customs Prosecutors to determine charge cases:
3.1 Charging by Revenue and Customs Prosecutors - the principle
Revenue and Customs Prosecutors will be responsible for the Charging Decision and the specifying or drafting of the charges in all indictable only, either way or summary offences where a Custody Officer determines that the evidential limb of the Threshold Test as is set out in paragraph 8.3 is met in any case.
Review of Cases charged by Custody Officers without a Charging Decision by a Revenue and Customs Prosecutor:
3.2 Review by Revenue and Customs Prosecutor under Section 10 of the Prosecution of Offences Act 1985
Where, by virtue of this Guidance, the Custody Officer makes the Charging Decision, that determination and the charge will be subject to a review by a Revenue and Customs Prosecutor acting under Section 10 of the Prosecution of Offences Act 1985.
Application of Code for Crown Prosecutors to Custody Officers:
3.3 The application of the Code for Crown Prosecutors
When determining charges, Revenue and Customs 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:
3.4 Number and seriousness of charge(s)
In determining the totality of charges to be proceeded with, the selection of charges should 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 for the charged person to ask the Court to take into consideration.
General application of full Code Test:
3.5 Application of the Full Code Test
In any case where the Charging Decision is to be made, and all of the evidential material 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 whether there is enough evidence to provide a realistic prospect of conviction and whether it is in the public interest to proceed.
The Threshold Test for charging in custody cases where evidential material is unavailable:
3.6 Application of Threshold Test to Charging Decisions
In cases where it is determined that it would not be appropriate for the person to be released on bail after charge and where there is insufficient evidential material to apply the Full Code Test at the time the charging decision has to be taken, a staged approach will apply.
Application of the Threshold Test by Revenue and Customs Prosecutors and subsequent review applying the Full Code Test:
3.7 Where the evidential material required under this Guidance is not available, the Revenue and Customs Prosecutor will assess the case against the Threshold Test set out below. This should be noted by the Revenue and Customs Prosecutor on the form at Annex A. Upon receipt of further evidential material, the Revenue and Customs 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.
3.8 A decision to charge and withhold bail must always 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. Revenue and Customs 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.
Application of the Threshold Test by Custody Officers:
3.9 Whenever a Custody Officer applies the Threshold Test in accordance with this Guidance he should only apply the evidential limb except when making a Charging Decision when he applies the Threshold Test in full.
The Threshold Test:
3.10 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, when the test is applied by a Revenue and Customs Prosecutor (note 15), that at that stage it is in the public interest to proceed.
(Note 15: Custody Officers do not apply the public interest limb of the Threshold Test).
3.11 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 that the totality of the evidence will support.
3.12 The public interest means the same as under the Full Code Test, but will be based on the information available at the time, which will often be limited.
Emergency Charging Decisions by Custody Officers when unable to consult a Revenue and Customs Prosecutor:
3.13 Emergency Cases - Expiry of PACE Time Limits
In cases in which 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 Revenue and Customs Prosecutor in person or by any other means 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 his Senior Supervising Officer and after consultation with the Investigating Officer. The Senior Supervising Officer shall note the custody record to confirm that it is appropriate to charge under this emergency provision. The case must be referred to a Revenue and Customs Prosecutor as soon as is practicable for authority to proceed with the prosecution.
4. Decisions ancillary to the charging decision
Consultations prior to applications to withhold bail at court and short remands to police, SOCA or HMRC custody:
4.1 Consultations where it is proposed to withhold bail or impose conditions
Whilst decisions to detain or bail persons are exclusively matters for a Custody Officer, where it appears that a person in 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 custody for the purpose of enquiries into other offences, the Custody Officer or Investigating Officer may wish to consult a Duty Revenue and Customs 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.
Court selection:
4.2 Determination of the court for first appearance
When Revenue and Customs Prosecutors make charging decisions concerning cases that are to be bailed directly to an initial hearing, the Revenue and Customs Prosecutor will determine whether the case is appropriate for an Early First Hearing Court or an Early Administrative Hearing Court. This will be recorded together with the Charging Decision.
5. Deployment of and role of Duty Prosecutor
Deployment and duty of Revenue and Customs Prosecutors:
5.1 Deployment
The Director of Revenue and Customs Prosecutions Office will make arrangements for the deployment of Revenue and Customs Prosecutors to act as Duty Prosecutor. Duty Prosecutors will be available for consultation and will render early legal advice and guidance, including, where appropriate, the making of Charging Decisions (note 16).
(Note 16: Outside of usual office hours (6pm-8am) Duty Prosecutors will only be available for Charging Decisions and the provision of urgent advice).
When early advice may be sought by SOCA or HMRC:
5.2 Early Consultations
Early consultation and advice may be sought and given in any case and may include lines of enquiry, evidential requirements and any pre-charge procedures (note 17). In exercising this function, Revenue and Customs Prosecutors will be pro-active in identifying and, where possible, rectifying evidential deficiencies and will identify those cases that can proceed to court for an early guilty plea without a full file of evidential material.
(Note 17: See note 4 above).
Stopping weak cases early:
5.3 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:
5.4 Reviewing the request to Revenue and Customs Prosecutor for a Charging Decision and evidence.
Where Revenue and Customs Prosecutors receive a request for a Charging Decision it is the duty of the Revenue and Customs 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. SOCA/HMRC Investigating Officers, Custody Officers and Revenue and Customs Prosecutors will use the form at Annex A when requesting or communicating Charging Decisions.
Notice of charging or other decision:
5.5 Once a Charging Decision (or other decision) has been made, Revenue and Customs Prosecutors will give written notice of the decision to a SOCA/HMRC Investigating Officer and/or the Custody Officer. A copy will be retained by the Revenue and Customs Prosecutor. In respect of a person kept in police detention under PACE Section 37(7)(a), the notice may be given orally in the first instance and confirmed in writing subsequently (note 18).
(Note 18: PACE, Section 37B(4A)).
Agreeing an action plan to build a case file:
5.6 Where, during the course of a consultation, it is clear that a charging decision in the case cannot be reached at that stage, the Revenue and Customs 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 SOCA/HMRC Investigating Officer the action to be taken and the time in which that is to be achieved. This agreement will be recorded on the form at Annex A and a copy will be provided to the Investigating Officer. A copy will be retained by the Revenue and Customs Prosecutor. In providing such advice, Revenue and Customs Prosecutors will specify the precise evidence required. Persons will not be charged until all agreed actions have been completed.
Referrals of cases in special circumstances:
5.7 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 Revenue and Customs Prosecutor consulted, will make the necessary arrangements.
Building evidential files: use of pre-charge bail:
5.8 Revenue and Customs Prosecutors will detail the requirements for additional preparation where the available information is insufficient to make a full charging decision. 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 shall be reported to a Revenue and Customs Prosecutor for a Charging Decision.
6. Decisions not to prosecute
Written notice by Custody Officer of no prosecution:
6.1 Insufficient evidence or not in the public interest to charge
Where the Revenue and Customs 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, given a caution, a conditional caution, or referred back to HMRC for compounding or a civil penalty to be offered 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:
6.2 Where however it appears to the Revenue and Customs 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 Revenue and Customs Prosecutor will notify the Custody Officer to that effect who will notify the person in writing accordingly.
7. Evidential Material to be sent to Revenue and Customs Prosecutors for Charging Decisions
Evidential material required to make a Charging Decision:
7.1 In making Charging Decisions, Revenue and Customs Prosecutors will examine and assess the available evidential material before reaching a decision. Wherever possible, Revenue and Customs Prosecutors will seek to make the decision on the evidential material presented to them by the Investigating Officer. Where 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 material to be provided as soon as is practicable.
Evidential material:
7.2 The evidential material is material which can be considered in relation to both the evidential and public interest parts of the Full Code Test and the Threshold Test, and includes verbal and written reports, and relevant information of whatever type.
When Investigating Officer uncertain about the evidential material required:
7.3 Case requirements unclear - consult with a Duty Prosecutor
Where an Investigating Officer is uncertain about what evidential material is required to accompany the request for a Charging Decision, there should be early consultation with a Duty Prosecutor to establish what evidential material is required in order to make the Charging Decision.
8. 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 and Section 11 of the Police and Justice Act 2006
Early consultation where Charging Decision anticipated:
8.1 Requirement for early consultations
Where it appears likely that a Charging Decision will need to be made, Custody Officers must direct Investigating Officers to consult a Duty Revenue and Customs Prosecutor as soon as is practicable after a person is taken into custody. This will enable early agreement to be reached as to the evidential requirements and, where appropriate, for any period of bail to be determined to permit submission of the papers to the Revenue and Customs Prosecutor for a Charging Decision.
Early decisions:
8.2 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 evidential material.
Standard to be applied by Custody Officers when referring cases for Charging Decisions or releasing on bail:
8.3 The standard to be applied in determining whether the case is to be referred to a Revenue and Customs Prosecutor or whether the person is to be released on bail
In determining whether there is sufficient evidence to charge in accordance with Section 37(7) PACE, Custody Officers will apply the evidential part of the Threshold Test set out in paragraph 3.10. above. Where, in any case, it appears that there is manifestly no evidence and the evidential part of the Threshold Test is not met in respect of a detained person, the Custody Officer need not refer the case to a Revenue and Customs Prosecutor before releasing that person, whether on bail or otherwise. In any case where this Guidance requires charges to be determined by a Revenue and Customs Prosecutor and a Custody Officer concludes that the evidential part of the Threshold Test is met, the Custody Officer will ensure that the case is referred to a Revenue and Customs 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(2).
Application of pre-charge bail:
8.4 Delaying charging and releasing suitable persons on bail
In any case where this Guidance requires charging decisions to be made by Revenue and Customs Prosecutor 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 Revenue and Customs Prosecutor and for the submission of papers for a Charging Decision in accordance with this Guidance.
Early disclosure to defence:
8.5 The period of bail should be such as to allow for the completion of the investigation, for submission of papers to Revenue and Customs Prosecutor for a Charging Decision, for the person to be charged and for early disclosure of the evidence and any unused material to be provided to the defence prior to the first appearance.
Delayed charges - other reasons:
8.6 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 Revenue and Customs Prosecutor and proposes to release the person from 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.
9. Cautions, Conditional Cautions, Reprimands and Final Warnings
Actions on conditional caution cases:
9.1 Where a conditional cautioning scheme is in force and the Investigating Officer or Custody Officer wishes to conditionally caution any person for an offence, the Custody Officer must refer the case to a Revenue and Customs Prosecutor for a decision.
Decisions to charge or caution by Revenue and Customs Prosecutors:
9.2 Where the Revenue and Customs Prosecutor gives notice that a caution, a conditional caution, a reprimand or final warning is appropriate, but it proves not to be possible to give it to the person, he shall instead be charged with the offence (note 19).
(Note 19: PACE, Section 37B(7)).
10. Breach of Pre-Charge Bail Conditions
Charging breach of bail - emergency situations:
10.1 Where a person released on bail pending a Charging Decision is arrested for breaching his bail, and where it has proved not to be possible to consult with a Revenue and Customs Prosecutor in person or by any other means 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 the charging decision, but only on the authority of a Senior Supervising Officer. The Senior Supervising Officer shall make a note in the custody record to confirm that it is appropriate to proceed to the charging decision under the emergency provisions. The case must be referred to a Revenue and Customs Prosecutor as soon as is practicable for authority to proceed with the prosecution.
SOCA or HMRC action post referral:
11. HMRC action post referral and escalation procedure.
11.1 In any case where the evidential part of the Threshold Test is met and the case has been referred to a Revenue and Customs Prosecutor for a Charging Decision, and the Revenue and Customs Prosecutor notifies the Investigating Officer that the person should be charged, cautioned, conditionally cautioned, given a reprimand or a final warning, or should have no action taken against him, the Custody Officer and Investigating Officer will not proceed in any other way than that notified without first referring the case back to the Revenue and Customs Prosecutor.
Dispute resolution:
11.2 Where in any case an Investigating Officer or Custody Officer is not in agreement with the Charging Decision or any diversion proposal of a Revenue and Customs Prosecutor and wishes to have the case referred for further review, the case must be referred through a Senior Supervising Officer to a Divisional Head of the Revenue and Customs Prosecutions Office for resolution. If further escalation is required, the matter may be considered at Director level. Procedures will be put in place for this review to be conducted speedily.
David Green QC
Director of Revenue and Customs Prosecutions Office
