Joint Committee On Human Rights Twentieth Report

3  Lowering the Charging Threshold


37. In our previous reports on Counter Terrorism Policy and Human Rights we have sought to demonstrate the importance of the charging threshold in the debate about whether there needs to be a further extension of the period of pre-charge detention beyond 28 days.[30] Since 2004 the charging threshold for terrorism and other serious cases has been lowered by the introduction of the so-called "Threshold Test" for charging. Because of the importance of the Threshold Test for the debate about extending pre-charge detention, and because the meaning of the phrase itself is hardly self-evident, it is worth repeating the explanation of what the Threshold Test is and why it matters.

38. The normal test applied by a Crown prosecutor deciding whether or not to charge a suspect is that on the material available there is "a realistic prospect of conviction." As the DPP explained in Public Bill Committee, "that means that there is a better than evens chance that the verdict will be guilty."[31] This charging standard is deliberately a high one: it is designed to protect potential defendants from being charged with weak cases where there is no prospect of a successful prosecution and to prevent the waste of public funds involved in bringing charges which are subsequently abandoned.

39. If the prosecutor is considering a case that is sufficiently serious that a remand in custody would be appropriate in the event of a charge, the prosecutor may charge on the "Threshold Test" which is a lower test: the prosecutor can charge on the basis of reasonable suspicion that the offence was committed. That reasonable suspicion must be based on material that either is or will be admissible at trial. The Threshold Test is therefore a higher test than is required to be satisfied to arrest a terrorism suspect (where the reasonable suspicion can be based on inadmissible material such as intelligence or intercept), but a significantly lower test than the "realistic prospect of conviction" test which is the normal charging standard.

40. The significance of the availability of the lower test for charging in terrorism cases is that it undermines the case for further extending the maximum period of pre-charge detention. As the DPP has explained, if, by the end of the period of 28 days, there is not even enough evidence to ground a reasonable suspicion that the suspect has committed a terrorism offence, it is extremely unlikely both that such material will in fact be found and that a judge can be persuaded that there is a reasonable likelihood that such material will be found. The lowering of the charging threshold in terrorism cases therefore significantly reduces the force of the case for extending the period of pre-charge detention, especially when combined with the recent advent of broader terrorism offences such as acts preparatory to terrorism and, in future, the availability of post-charge questioning.

41. As we pointed out in our first Report on this Bill, of the eight individuals who have so far been charged after being held for more than 14 days, four have been charged on the threshold test.[32] Of those four, one was charged after 20 days' detention, and the other three at the end of the maximum period, at 27/28 days. Two of the four charged on the threshold test were charged with acts preparatory to terrorism. In our view these statistics suggest that the threshold test, in combination with the new offence of acts preparatory to terrorism, is already assisting with the task of enabling appropriate charges to be brought in terrorism cases, without the need for extending pre-charge detention beyond 28 days.

Statutory authority and independent safeguards

42. We have therefore consistently welcomed the lowering of the charging threshold in terrorism cases as an important constituent element in the package of measures which make it unnecessary to extend the period of pre-charge detention. In our first report on the Counter Terrorism Bill, however, we considered in more detail the extent to which there had been parliamentary consideration of the lowering of the charging threshold and whether there exist satisfactory independent safeguards to ensure that the Threshold Test does not operate in practice in a way which impinges disproportionately on the liberty of the individual, for example by resulting in terrorism suspects being detained for longer than necessary before being released without trial.

43. We considered that, although the lowering of the charging threshold in terrorism cases had been a beneficial development, and there was no evidence that it had operated unsatisfactorily in practice, there had been no parliamentary consideration of the lowering of the charging threshold and there was room to introduce some independent safeguards to ensure that it is not operated in a way which has a disproportionate impact on liberty. We therefore recommended that the Threshold Test for charging in terrorism cases be put on an explicit statutory footing and that certain independent safeguards be introduced. The present Bill provides an opportunity to do this and we indicated that we hoped to propose amendments to give effect to our recommendations. The purpose of this part of this report is to consider the Government's response to our recommendations, to explain why we find them unpersuasive, and to explain the amendments we now propose to give effect to our earlier recommendations.

44. Since the publication of our first Report on this Bill we have also received a response from the DPP to our letter in which we enquired about the genesis and application of the Threshold Test and asked to be provided with a copy of the DPP's Explanatory Guidance on the Application of the Threshold Test issued in September 2005 but which had not found its way into the public domain.[33] We are grateful for the DPP's detailed response[34] and for providing us with a copy of the Explanatory Guidance.[35] We found the DPP's explanation of the background to the introduction of the Threshold Test extremely helpful and it confirms our previously expressed view that the lowering of the charging standard in terrorism and other serious cases has been a beneficial development which is to be welcomed from a human rights perspective. We note with interest the explicit acknowledgment in the DPP's own Explanatory Guidance that "the Threshold Test is potentially a grave infringement on the liberty of the individual."[36] It is for precisely that reason that we have recommended that it should have a statutory basis, rather than depend on the exercise of the DPP's discretion, and be subject to certain independent safeguards to ensure that the proportionality of the infringement on individual liberty is scrutinised by someone other than the DPP himself.

The Government's response

45. In its Reply to our first Report on the Counter-Terrorism Bill, the Government rejected all of our recommendations in relation to the threshold test for charging. It sees no benefit for the defence in being informed that the Threshold Test rather than the Full Code Test has been applied when a suspect is charged. It claims that there has already been an opportunity for parliamentary scrutiny of the Threshold Test because the Code for Crown Prosecutors (which contains the Threshold Test) is required to be laid before Parliament annually, when there is an opportunity to hold a debate on its contents. It says that Parliament has "already considered the point" and given the DPP powers to issue guidance under the Prosecution of Offences Act 1985 and the Police and Criminal Evidence Act 1984.[37]

46. We do not accept that there has already been meaningful parliamentary scrutiny of the Threshold Test. The Government's assertion that the Code for Crown Prosecutors is laid before Parliament annually, when its contents can be debated, is simply wrong. The DPP's annual report to the Attorney General is laid before Parliament annually, but the Code itself is only set out in the DPP's report in the year in which the Code is issued which, in the case of the current Code, was 2004.[38] We remain of the view that the Threshold Test would benefit from proper parliamentary scrutiny and debate, which to date it has never received.

47. The Government is also opposed to putting the threshold test in terrorism cases on a statutory footing, and to specify some independent safeguards. They state that enshrining the Threshold Test in statute would necessitate similar treatment for the Full Code Test, and the standard required to be met to bring a prosecution has never been specified in primary legislation before. To do so, the Government argues, "would restrict the ability of the DPP to react to legal situations which may demand a change in the Code. … The fact that Parliament would effectively determine the test for bringing a prosecution in such sensitive cases may be seen as unwarranted political interference in the prosecution process."

48. We do not accept that putting the Threshold Test on a statutory footing would amount to an unwarranted political interference with the independence of the prosecution process. On the contrary, we are concerned by the amount of discretion to interfere with liberty that is currently delegated to the DPP, without any independent safeguards. Given the importance of where the threshold for prosecution is set, and in particular the implications for an individual's liberty, in our view the Government's approach fails properly to reflect the strong constitutional presumption that interferences with an individual's liberty require express statutory authorisation, or leaves too much discretion to the DPP. We are not therefore persuaded by the Government's argument that it would be constitutionally improper to place the Threshold Test on a statutory footing or to introduce some independent safeguards.


49. We therefore remain of the view that we reached in our first Report on this Bill, that the Threshold Test should be placed on a statutory footing and some necessary basic safeguards inserted into the legal framework. We suggest an amendment to the Bill below which is designed to stimulate parliamentary debate about this recommendation. In recommending this amendment, we think it is important to acknowledge that, to the best of our knowledge, there have been no cases concerning terrorism in which charges brought on the threshold test have been dropped and the suspect subsequently released without trial. We regard that as a testament to the conscientious way in which the test is currently being operated by the CPS, but we remain concerned for the longer term by the lack of statutory authority for the test and the absence of independent safeguards.

New clause

'Lower threshold for charging in terrorism cases

(1)When deciding whether there is sufficient evidence to charge a person with an offence having a terrorist connection, a Crown Prosecutor may apply the "Threshold Test" for charging if the conditions in subsection (3) below are satisfied.

(2) The "Threshold Test" for charging is met where there is at least a reasonable suspicion that the suspect has committed an offence having a terrorist connection.

(3) The conditions which must be satisfied for the Threshold Test to apply are:

(a) it would not be appropriate to release the suspect on bail after charge

(b) the evidence required to demonstrate a realistic prospect of conviction is not yet available, and

(c) it is reasonable to believe that such evidence will become available within a reasonable time.

(4) The factors to be considered in deciding whether the Threshold Test of reasonable suspicion is met include

(a) the evidence available at the time;

(b) the likelihood and nature of further evidence being obtained;

(c) the reasonableness for believing that evidence will become available;

(d) the time it will take to gather that evidence and the steps being taken to do so;

(e) the impact the expected evidence will have on the case;

(f) the charges that the evidence will support.

(5) Where a Crown Prosecutor makes a charging decision in accordance with the Threshold Test, the person charged shall be immediately informed of the fact that they have been charged on the standard of reasonable suspicion.

(6) When the person charged on the Threshold Test is brought before the Court it shall be the duty of the Crown Prosecutor to inform the Court of that fact.

(7) The Court shall set a timetable for the receipt of the additional evidence and for the application of the normal test for charging as set out in the Code for Crown Prosecutors.

(8) The Chief Inspector of the Crown Prosecution Service Inspectorate shall report annually on the operation of the Threshold Test in terrorism cases.'

30   See e.g. Report on Prosecution and Pre-charge Detention at paras 122-129; Report on 28 days at paras 180-182; Report on 42 days at paras 44-48. Back

31   PBC 22 April 2008 col. 56. Back

32   First Report on Counter-Terrorism Bill, para. 77. Back

33   Letter from the Chair to Sir Ken Macdonald QC, 17 January 2008 (Appendix 1). Back

34   Letter from Sir Ken Macdonald QC to the Chair, 8 February 2008 (Appendix 2). Back

35   Explanatory Guidance on the Threshold Test (Appendix 3). Back

36   Ibid at para. 3. Back

37   As amended by the Criminal Justice Act 2003, giving the DPP a guidance making power in relation to charging: see s. 37A. Back

38   Prosecution of Offences Act 1985, s. 10(3). Back

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