Joint Committee On Human Rights Twentieth Report

Appendix 3: Explanatory Guidance on the Threshold Test


Appropriate application of the Threshold Test when making charging decisions or releasing persons on bail for referral to a prosecutor

Interpretation Difficulties

1. Feedback received from CPS Direct, some of the recent post-implementation reviews and the outcome of a number of cases recently is indicating that there may be misunderstanding on the part of both police officers and prosecutors as to the circumstances in which the Threshold Test may be applied in reaching a charging decision and the extent to which a prosecutor has to be satisfied that there are lawful grounds to justify the continued detention of an individual.

2. This misunderstanding is leading in some cases to the Threshold Test being inappropriately applied where either the suspect ought to be released on bail or where, in the circumstances of the case, there is no likelihood of further significant evidence being obtained. In both such circumstances the Full Code Test should properly be applied.

Justification for the Threshold Test and Limitations

3. The Threshold Test is potentially a grave infringement on the liberty of the individual. It allows charging on reasonable suspicion only, which for obvious reasons does not require a high standard of evidence during what will be the early stages of generally serious cases. The justification for this is the requirement to minimise the risk to the public by seeking to ensure the continued detention of individuals who may pose a substantial bail risk. This is set out in more detail in section 38 PACE (see further below).

4. The Threshold Test is not to be regarded as a shortcut to obtaining a charging decision to place offenders before a court quickly. The amendments to section 37 (7) of the Police and Criminal Evidence Act are intended to ensure that in any case where a suspect is suitable to be released on bail the evidence required to satisfy the Full Code Test is gathered before charging takes place.

5. Application of the Threshold Test is only permitted in the limited circumstances set out in the Code for Crown Prosecutors and in the Guidance on Charging that I have issued under section 37A of the Police and Criminal Evidence Act. These restrictions on the use of the Threshold Test are obligatory and prosecutors must record, as part of the charging decision, that the circumstances giving rise to the use of the Threshold Test are applicable.

6. Paragraph 3.2 of the Code for Crown Prosecutors requires that charging decisions will be made in accordance with the Full Code Test except in the limited circumstances where the Threshold Test applies. Paragraph 3.3 and the whole of paragraph 6 of the Code set out in detail the circumstances in which a Crown Prosecutor may apply the Threshold Test. This test may only be applied where the case is one in which it is proposed to keep the suspect in custody after charge because he presents a substantial bail risk, but much of the evidence is not available at the time the charging decision has to be made and the pre-charge time limits for custody are about to run out.

7. To make it perfectly clear, prosecutors should, wherever possible, always seek to apply the Full Code Test when considering the charging of a case. The Threshold Test is not an interim stage to be reached in every case. It is a temporary test which may only be applied when:

  • The pre-charge custody time limit is about to or will shortly run out, but
  • The evidence to allow consideration of the Full Code Test is not yet available, and
  • Steps are being or are about to be taken to obtain this evidence, and
  • This evidence will have a significant impact on the case and will be available in a reasonable time (see 6.4 of the Code for Crown Prosecutors for full list of requirements or Paragraph 3.10 of my Guidance on Charging)
  • The Custody Officer has decided it would be appropriate to detain the suspect in custody after charge until the next court hearing, and
  • An application to withhold bail can properly be made that court by a prosecutor.

Responsibilities of the Custody Officer

8. Subsection (1)(a) of section 38 PACE sets out the duties of the Custody Officer after charge and lists the detention provisions in respect of adults. When someone who has been arrested without warrant (or under a warrant not endorsed for bail) is charged, the Custody Officer must release him with or without bail unless it is decided one or more of the following conditions apply:

i. It appears that he has not provided a satisfactory address for service of a summons.

ii. There are reasonable grounds for believing that he will fail to appear at court to answer bail.

iii. Where someone is arrested for an imprisonable offence, where there are reasonable grounds for believing that detention is necessary to prevent him from committing an offence.

iv. Where someone is arrested for an offence that is not imprisonable, and there are reasonable grounds for believing that the detention is necessary to prevent him from causing physical injury to anyone (e.g. assault) or from causing loss of or damage to property (e.g. theft or criminal damage).

v. If there are reasonable grounds for believing that the detention is necessary to prevent him from interfering with the administration of justice or with the investigation of offences.

vi. If there are reasonable grounds for thinking that detention is needed for his own protection (and if a youth, that he ought to be detained for his own interests).

9. In deciding whether such conditions apply (except for (i) and (vi)), the Custody Officer is required to have in mind the same considerations as magistrates when considering whether to grant bail for a person arrested for an imprisonable offence, namely:

i. The nature and seriousness of the offence and probable penalty;

ii. The defendant's character, antecedents, associations and community ties;

iii. His record in regard to any previous grant of bail; and

iv. The strength of the evidence; together with any other relevant considerations.

10. Home Office Circular 111/92 gave further guidance on the matters that Custody Officers should take into account, including:

a. The suspect's intentions as expressed: e.g. any threats

b. His disposition as expressed in violent behaviour; and

c. His prior record.

A Crown Prosecutor's Responsibility

11. A Crown prosecutor will make precisely the same assessment; experience will help inform the decision as to whether the magistrates would be likely to accept such reasoning. Paragraphs 3.3 and 6.3 of the Code requires Crown Prosecutors to be satisfied in all the circumstances of the case that there are grounds for believing that the suspect in custody presents a substantial bail risk justifying continued detention and that application of the Threshold Test is therefore appropriate. Prosecutors must be so satisfied and should not accept, without proper enquiry, any unjustified or unsupported assertions about risk if release on bail were to take place.

The Charging Initiative - Changes in Procedure

12. Although PACE and other guidance continues to emphasise the role of the Custody Officer in making assessments about bail post charge, the decision as to whether an application to remand into custody will be made to the court lies wholly with the prosecutor. Indeed it always has done so.

13. What is now different is that the charging initiative has moved the prosecutor's involvement forward in time and requires this judgement to be made at the time of the assessment of the case. No reasonable prosecutor on discovering the police proposals for the prisoner post charge could properly close his mind to how the case will in fact be handled by the CPS after charge. To make no objections to bail (or approve conditions that could have been granted by the police themselves) concerning someone held in custody post charge damages the credibility of both the police and the CPS, and is, other than in exceptional circumstances, grossly unfair on the defendant and invites legal action against those responsible.

The Need for Improved Communications

14. Clearly the Prosecution Team needs to act cohesively, and must be seen to do so, so that only where it is strictly necessary do defendants appear in custody at court with an application for bail to be withheld. Placing inappropriate cases before the court in such circumstances will make sustaining proper applications for remand in custody more difficult.

Early use of the MG7

15. To assist in improving communication and making a co-ordinated approach, Custody Officers will ensure a properly completed MG7 accompanies the MG3 to provide the prosecutor with sufficient information to assess the justification for withholding bail and fully understand the police concerns.

The Prosecutor's Approach and Assessment Procedure

16. Accordingly, in the light of the fullest information, the prosecutor should consider whether, in all the circumstances of the case, the Custody Officer's decision is consistent with the legal requirements to withhold bail and that such withholding can be sustained when application is made to the court. If the conclusion is in the negative, the prosecutor must discuss this with the Custody Officer ensuring that all current information about the case and police objections to bail have been received and are fully explained. Prosecutors should aim to come to a mutually acceptable agreement wherever possible.

17. If after any further information has been provided and discussions have taken place (including possible consultation between the prosecutor and line management), it is concluded that an application to withhold bail cannot be sustained at court then the Threshold Test must not be applied and the Custody Officer must be advised that the Full Code Test will be applied instead.

18. If the case does not meet the Full Code test, the suspect may not be charged though the Custody Officer may still release the suspect on pre-charge bail (including the imposition of conditions) under S37 (7) (a) if the Custody Officer is satisfied that in fact the case did pass the Threshold Test (see later) and further evidence is to be gathered to meet the Full Code Test to allow a further referral for a charging decision.

Escalation procedure

19. Where the Custody Officer is not in agreement with the prosecutor's decision, the case may be escalated in accordance with paragraph 11.2 of the Guidance on Charging

Public Confidence

20. The above is an example of how an independent prosecution service working closely with the police should operate. It will prevent cases appearing in the remand court where the prosecutor will not be seeking a remand into custody and ensures that cases do not proceed to charge unless the appropriate test is met. CPS managers will of course want to discuss any such cases with senior police managers urgently to safeguard the cohesion of the prosecution team.

The evidential decision under the Threshold Test

21. The Threshold Test is an interim judgement that may be applied only where further evidence is being gathered. This requires that further enquiries are proposed or being undertaken that are likely to result in further significant evidence, sufficient to meet the Full Code Test, becoming available in a reasonable time. If there is no reasonable likelihood that further evidence will become available to meet the Full Code Test standard, the Threshold Test may not be applied. Paragraph 6.4 of the Code sets out the factors that must be considered in making this assessment.

22. In such circumstances, the Full Code Test would have to be applied and appropriate decisions taken in the light of all the circumstances at the time. Where the decision is made not to charge, the suspect may only be released on unconditional bail for further enquiries under section 34(5), since the Threshold Test could not have been passed - there being no reasonable prospect of evidence sufficient to meet the Full Code test becoming available.

Charging decisions - recording and completion of MG3

What must be recorded on the MG3

23. Consideration of the factors that will determine whether it is appropriate to apply the Threshold Test in each particular case will be made in consultation with the Police; prosecutors should ensure they are acquainted with all relevant evidence and factors appropriate to the case. Where it is decided to apply the Threshold Test, the MG3 must record the circumstances justifying application of this interim test, record a date for a further review to be undertaken when the Full Code Test will be applied, and record the specific actions agreed with the investigator to gather the further evidence that will allow that test to be applied. CPS managers must ensure that the Threshold Test is only applied in appropriate cases and that action plans are properly completed.

Audit trail of decisions

24. The Guidance on Charging is a public statement of our policy and is now contained in published legal text books. We can expect increased scrutiny of the decisions of Custody Officers and prosecutors leading to possible legal challenges by the defence. Prosecutors should be able to demonstrate that the Code and our policy have been properly applied and that they have acted with due diligence and expedition.

Ensuring that dangerous offenders who present a substantial bail risk are detained

25. Area managers will need to discuss this further guidance with their staff and local police force and put in place appropriate protocols and liaison arrangements to ensure that the police retain the ability to deal effectively with dangerous and difficult offenders for whom the Threshold Test was properly developed.

File Inspections

26. This early involvement in cases is an important task that prosecutors have been entrusted with on behalf of the public and I am determined to see that it is working properly. This will require local managers to supervise their prosecutors and I may ask to see files on Area visits to satisfy myself that the highest priority is being given to raising and maintaining the necessary standards.

Explanation of the Application of the Threshold Test by the police before referring cases to prosecutors

What if a Case does not meet the Threshold Test Standard?

27. The Threshold Test is the evidential standard that must be met before a case has to be referred to a prosecutor for a charging decision. If a case does not meet that standard, the Custody Officer may determine that it should not be referred to a prosecutor at that stage for a charging decision. This does not prevent a Custody Officer referring the case to a prosecutor for advice. However if the Threshold Test evidential standard is not met, only unconditional bail may be imposed (under section 34(5)). Once a case does reach this standard, the detained person may be released on pre-charge bail, including with the imposition of conditions for referral to a prosecutor.

Custody Officer to Initially Determine if Threshold Test Passed before Charging Decision Sought

28. Application of the threshold test for this purpose requires an overall assessment of whether there is at least a reasonable suspicion against the person for having committed an offence and that there is a realistic prospect of further evidence being obtained to satisfy the full Code test. Of course it must also be in the public interest to proceed at that stage. It is for Custody Officers to determine in their judgement whether the Threshold Standard is met at this early stage. If it is, a charging decision may be sought or pre-charge bail under section 37(7) including where appropriate bail conditions may be imposed.

29. Further enquiries on this guidance should be addressed to David Evans at Policy Directorate or Paul Whittaker, CCP Merseyside.

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Prepared 19 May 2008