What are pre-charge representations - and can they stop a prosecution?
Many people assume that once they have been interviewed by the police, there is nothing more they can do except wait to find out whether they will be charged. That is not always true.
In many investigations, there is an important opportunity to influence the charging decision before the Crown Prosecution Service (CPS) decides whether criminal proceedings should begin. This is done by making pre-charge representations.
When used at the right time and supported by relevant evidence, pre-charge representations can persuade the police or CPS that the evidential test is not met, that further enquiries are needed or, in some cases, that a prosecution would not be in the public interest.
What are pre-charge representations?
Pre-charge representations are submissions made on behalf of a suspect before a criminal charge has been authorised. They are usually made in writing, although there may occasionally be a reason to raise matters orally as well.
Rather than waiting for the case to reach court, the solicitor takes a proactive approach and explains why criminal proceedings should not be brought. Depending on how the investigation is being handled, the representations may be sent to the officer in charge, the reviewing lawyer at the CPS or both.
Their purpose is straightforward: to ensure that the person making the charging decision has a fair and complete picture of the case before deciding whether it should proceed.
When can they be made?
Pre-charge representations are often made after a voluntary interview under caution or an interview following arrest, once the police have completed most of their enquiries and the case is approaching a charging decision. They may also be made after the file has already been referred to the CPS.
There is no single correct stage in every case. Sometimes it is sensible to intervene early, particularly where an obvious misunderstanding can be corrected or a specific line of enquiry needs to be preserved. In other investigations, it may be better to wait until disclosure has been received, the allegation is clearer or further defence evidence has been obtained. Choosing the right moment can be just as important as deciding what the representations should say.
What can they include?
The contents will depend entirely on the allegation and the available evidence. Effective representations may identify weaknesses in the prosecution case, inconsistencies between witness accounts or an alternative explanation that has not been properly considered. They may draw attention to CCTV, mobile telephone material, digital records, forensic evidence, expert opinion or a legal defence that affects the prospects of conviction.
They can also identify errors or misunderstandings in the investigation and explain why particular enquiries should be completed before a charging decision is made. In an appropriate case, the submissions may address the public-interest stage of the Code for Crown Prosecutors, even where there appears to be sufficient evidence to support a charge.
The strongest representations are supported by material that the decision-maker can check and evaluate. A bare assertion that a suspect is innocent is unlikely to be enough. The aim is to show, carefully and objectively, why the evidence does not justify criminal proceedings or why the investigation is not yet complete.
Can they really prevent prosecution?
Yes. No solicitor can guarantee that representations will stop a charge, but properly prepared submissions can and do influence charging decisions.
They may persuade the CPS that there is no realistic prospect of conviction because an essential part of the case cannot be proved. They may show that important evidence has been overlooked, that further investigation is needed or that an apparently incriminating fact has an innocent explanation. In other cases, they may demonstrate that prosecution would not be in the public interest.
The result may be a decision to take no further action. Alternatively, the police may carry out additional enquiries before deciding whether the case should proceed. Even where the investigation continues, ensuring that the right issues are considered at an early stage can materially affect its direction.
Why do pre-charge representations work?
Police officers often have demanding caseloads and may not have had the opportunity to investigate every reasonable line of enquiry. CPS prosecutors must usually make their decision from the material provided to them. If relevant evidence has not been obtained, or an important legal issue has not been clearly explained, the charging decision may be made on an incomplete picture.
Pre-charge representations give the defence an opportunity to correct that imbalance. They place relevant evidence and legal analysis before the decision-maker while there is still time for it to affect the outcome, rather than raising those matters for the first time after proceedings have begun.
What sort of evidence can make a difference?
The useful evidence will vary from case to case. It may include CCTV footage, mobile telephone downloads, text messages, emails, social media material or location data. Financial, employment and medical records can sometimes provide important context. Witness statements and expert reports may also challenge an assumption made during the investigation or support an alternative account.
In some cases, a large body of material is needed to explain the position properly. In others, a single message, document or item of footage can fundamentally change the direction of the investigation. The important point is to identify evidence that genuinely bears on the charging test, rather than overwhelming the decision-maker with irrelevant material.
Are pre-charge representations suitable in every case?
No. There are cases in which making detailed submissions too early could be unhelpful. If the defence does not yet understand the full allegation, or important disclosure has not been provided, there is a risk of addressing the wrong issue or revealing a defence strategy unnecessarily.
There may also be circumstances in which it is better to allow the investigation to develop before deciding what should be disclosed to the police or CPS. Whether to make representations, when to make them and how much they should contain are matters of careful professional judgement. A decision not to make representations immediately does not mean that the opportunity has been lost; it may simply mean that the case is not yet ready.
Why experience matters
Effective pre-charge representations involve far more than writing a letter saying that the client denies the allegation. The solicitor must understand the relevant criminal law, the Code for Crown Prosecutors and the evidential test the CPS will apply. They must be able to assess the likely strengths and weaknesses of the prosecution case and identify the evidence that is capable of influencing the decision.
The best submissions are focused, measured and supported by evidence. They anticipate the prosecutor's concerns and deal with them directly. They also avoid overstating the defence case, because credibility is important when asking the police or CPS to reconsider the apparent strength of an allegation.
Early advice can make all the difference
Once a person has been charged, the focus inevitably shifts towards preparing the case for court. Before charge, however, there may still be an opportunity to prevent proceedings from being brought at all.
Not every investigation can be stopped through pre-charge representations. Where they are appropriate, however, they can be one of the most effective tools available to the defence. Obtaining specialist advice at an early stage gives the solicitor time to assess the evidence, preserve material that may otherwise be lost and decide whether intervention is likely to help.
How we can help
At Chetwode, we regularly prepare detailed pre-charge representations for clients facing criminal investigations. We analyse the evidence, identify weaknesses or missing lines of enquiry and present focused legal submissions to the police or CPS before a charging decision is made.
Where appropriate, this can lead to further investigation, a decision not to prosecute or the matter being resolved without criminal proceedings. Although no solicitor can promise a particular outcome, timely and well-prepared intervention can make a significant difference in the right case.