APPENDIX 3: The practicalities of decision-making
on charging
Letter from the Director of Public Prosecutions,
4 June 2008
Thank you for your letter of 20 May 2008, requesting
further information about the Threshold Test and how it operates
in terrorism cases.
The Threshold Test was first included in the most
recent edition of the Code for Crown Prosecutors (the Code) published
in June 2004, and is intended for use in all types of case, not
just terrorism. It might assist if I explain why it was thought
necessary that the responsibility for charging to be transferred
to the Crown Prosecution Service (CPS), and if I outline of the
Threshold Test in detail.
As might be expected, there are a number of police
investigations which do not produce sufficient evidence to satisfy
the Code for Crown Prosecutors realistic prospect of conviction
standard within the pre charge custody time limits, but there
is clearly further significant evidence to be obtained. The dilemma
facing the police and prosecutors in a limited number of these
cases is that a proper risk assessment reveals a dangerous suspect
or one that would, if released, flee the jurisdiction, interfere
with witnesses or hinder the recovery of evidence.
The statutory framework provided by the Police and
Criminal Evidence Act 1984 (PACE) does not provide for any specific
interim assessment to justify charging in such circumstances.
Prior to the changes brought about by the Criminal Justice Act
2003, PACE allowed the police to charge on a rather vague notion
of there being 'sufficient evidence to charge'. This standard
is not defined in the Act and bears no relation to other more
objective standards such as 'a realistic prospect of conviction'
or 'beyond reasonable doubt' as required to satisfy a jury. Rather
it provided a standard that was as flexible as the circumstances
required.
It is a matter of history and part of the methodology
of police working, that their pre 2003 charging decisions were
largely based on oral exchanges between the investigating and
custody officer, occasionally supported by documentary evidence,
but often with much of the key evidence that would now be necessary
to satisfy the requirements of the Code still to be obtained.
The low evidential standard demanded by 'sufficiency to charge'
facilitated a generous interpretation and for the dangerous offender
dilemma to be dealt with pragmatically.
The application of this standard to casework led
to high levels of discontinuance and many aborted trials, even
in cases where defendants had been held in custody. This was mostly
due to the failure of the police to produce any additional necessary
evidence or a failure to produce it within a timetable acceptable
to the court and the interests of justice.
This was one of the reasons underlying Lord Justice
Auld's recommendations for the transfer of responsibility for
charging to the CPS. For this purpose, the Criminal Justice Act
2003 empowers the Director of Public Prosecutions (DPP) to issue
guidance to enable custody officers (and prosecutors) to decide
how persons should be dealt with when a custody officer believes
there is sufficient evidence to charge a person.
Guidance for prosecutors has also been published
by successive DPP as you are no doubt aware. The Code was published
after wide public consultation, and since 2004 has included specific
guidance on how prosecutors should determine whether and what
to charge. The required standard to charge is set by the DPP and
can be changed should the circumstances demand it following consultation.
The current standard 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 wasteful expenditure
of public money.
As part of the strategy for dealing with the annual
one and a half million prosecutions, the DPP decided that the
CPS should charge the more serious and complex cases, with the
police dealing with volume straight forward admitted lower level
offences. It was clearly inappropriate for the police to charge
on a different standard from prosecutors, and the DPP required
that the police charge using the Full Code Test of there being
a realistic prospect of conviction. Indeed the 2003 PACE Codes
of Practice made this a requirement. This split of work naturally
meant that crown prosecutors would make the charging decision
for cases where the intention was to seek a remand into custody
post charge.
The Code requires that assessments of cases to be
charged are based on a proper review of the evidence. This requires
the production to and assessment of statements or other evidence
by prosecutors. This increased standard of scrutiny has led to
dramatic reductions in the discontinuance of cases and the number
of abandoned trials. It did however raise the issue of what to
do in cases where the PACE or Terrorism Act detention clock, with
extensions, defeated the ability of the police to produce sufficient
evidence to charge to the Full Code Test standard.
In cases where the suspect was suitable to be released
on bail, there was usually no issue since the suspect would be
so released while the investigations were completed although one
complication with arrests under the terrorism legislation is that
bail is not available. The issue with an offender who is a bail
risk or a risk to public safety is obviously much more difficult.
Let me provide a hypothetical example of the dilemma facing the
police and prosecution although recent examples of those who have
allegedly killed while on bail is example enough of the tragic
consequences that can arise.
Typically the profile which is often considered is
that of an offender who presents as an alleged deranged axe murderer.
The evidence at the critical time is not sufficient to pass the
Full Code Test, as no forensic examination results have yet been
received on blood and other items recovered from the scene. However,
let us say that the suspicions are based on the recovery of an
axe from an area associated with the defendant who provides a
no comment interview. There is at present no further evidence.
From the above, and from enquiries and other evidence yet to be
obtained, there is now at least a reasonable suspicion that the
police have arrested the right man. The police believe that these
other enquiries and the laboratory results are highly likely to
link the man to the scene of the crime. The retention in custody
of this man in the meantime provides the opportunity to avoid
the risk of the loss of further life or serious injury, which
from the indications and risk assessment the police have made
seem a distinct possibility.
The Threshold Test was developed to deal with this
dilemma and is fully compliant with Article 5 of the European
Convention. The effect of any charging is to bring a suspect who
on reasonable suspicion has committed an offence promptly under
the jurisdiction of a court. That court's sole or principal concern
will be to determine whether the suspect should be bailed or remanded
in custody. The Threshold Test goes beyond the Article 5 requirements
by requiring that there is a future realistic prospect of conviction
through the obtaining of further identified significant evidence
within a reasonable time.
At any such hearing, the court and defence will receive
at least an outline of the case and the reasons why the prosecution
will be seeking a remand into custody. Case progression rules
require an explanation for the delays being sought, which in the
above case would be the need for further enquiries and examination
of the laboratory results. The strength of the evidence is a factor
the court would take into account under the Bail Act which the
defence would be free, as they do, to exploit on their client's
behalf. The court would then determine whether the prosecution's
application could be sustained. There are in arguably more stringent
safeguards in terrorism cases, as all cases are subject to a preliminary
hearing where a detailed timetable and summary must be supplied,
and they are closely monitored by a High Court Judge in accordance
with the Terrorism Case Management Protocol.
The Threshold Test itself has already been explained;
its precise wording can to be found in the Code. It is applied
objectively by the charging prosecutor and is based on the evidence
produced by the investigator and the evidence to be obtained.
It can never be founded on inadmissible evidence, mere intelligence
or intercept material, for which in the latter case there is specific
statutory exclusion. The onus on the prosecutor is always to apply
the Full Code Test of the Code. If this cannot be done, then the
suspect must be bailed while the required evidence is obtained
if bail is available. Only exceptionally if the suspect on a proper
risk assessment is not suitable to be bailed or cannot be bailed,
even with conditions, and the objections to bail can be sustained
at court will the Threshold Test be applied.
The Threshold Test itself was developed for the generality
of casework and not for any specific cases such as those charged
under the Terrorism Acts, which represent a very small percentage
of the CPS's business. It is an open, transparent and accountable
process, and the CPS is following its published policy set out
in the Code. In every case, a copy of the evidence or a summary
is disclosed to the defence. The reason for its application is
as explained in this letter.
The PACE review currently taking place is to be asked
to reassess the workings of Section 37 of the Act, which provides
the current statutory standard of the evidence justifying charge,
so that it and other drafting issues criticised by the judiciary
can be clarified and improved in possible future legislation.
We do not keep specific data about which test was
applied in every case since the test was introduced, but I am
able to give you some information in relation to those who were
held for more than 14 days under Schedule 8 of the Terrorism Act.
Eight individuals have been charged after being held
for more than 14 days. The Threshold Test was used to charge four
defendants. The full test was used to charge the other four.
CPS guidance requires prosecutors to set review dates
in all Threshold Test cases as all cases must pass the Full Code
Test within a reasonable period of time. The date for the first
review is set at the time of charge and the main pieces of evidence
required will be set out in an advice for the police. Thereafter
there will be further regular reviews as and when necessary in
each individual case. In terrorism cases, the prosecutor allocated
to a case will be working on it consistently until the point that
the case papers are served on the defence and the court, whether
that is within 42 days (the time for most ordinary criminal cases)
or a longer period set by the judge. Each prosecutor on the Counter
Terrorism Division has only a few cases which will be at different
stages of the investigative and prosecution process, and it is
not unusual in the very large cases for a prosecutor to be devoted
almost exclusively to that case from the date of charge to the
date of trial.
In the first eleven days the prosecutor looks at
the available evidence, advises the police, and produces a preliminary
summary and proposed timetable for service of evidence. These
are both quite detailed documents which serve to inform the managing
judge and the defence at an early stage about what evidence is
then currently available, and what addition evidence will be available
for service and when it will be available. On the fourteenth day
there is a preliminary hearing, where the judge sets the timetable
for the case, having been informed by the information provided
by the prosecutor. This will inevitably involve staged service
of distinct sections of the evidence and before each section is
served the prosecutor will review it against the evidence so far.
The evidential case inevitably continues to develop up until the
date that the full case is served but often beyond that, as terrorism
investigations are frequently very large and wide ranging.
There are also regular conferences to discuss and
review the progress of the case and the gathering of evidence
throughout that pre-service period. This continuous and dynamic
process means that the whole of the prosecution's case against
each defendant in every case is looked at very regularly. If the
evidence is not developing as anticipated or if something is received
that appears to be exculpatory, the prosecutor will reconsider
the case against each defendant and either discontinue if it is
clear that there is no longer a realistic prospect of conviction,
or if felt more appropriate because further information is expected,
in exceptional circumstances we might inform the court that bail
is no longer opposed. This could occur at any stage, even before
the formal review date or receipt of all the papers from the police.
In addition to the continuous review by the prosecutor,
the regular conferences with the prosecution team to review progress,
and the monitoring of the timetable by the court, all cases are
closely supervised by me or my deputy throughout their lifetime.
This includes regular updates on progress and monthly formal reporting.
I trust you will understand from this brief explanation,
that there are procedures in place to ensure very close monitoring
and supervision of all terrorism cases and especially those where
the Threshold Test has been used. There are also procedures in
place to ensure that every case that goes to trial reaches the
appropriate standard.
I agree that it is vitally important that only proper
cases go to trial and the possibility of miscarriages of justice
is avoided.
The CPS has indeed supported post charge questioning
accompanied by appropriate safeguards as a useful tool to help
address some of the difficulties faced by those investigating
and prosecuting terrorism.
I trust that this gives you a full explanation of
how the Threshold Test operates, and gives you sufficient information
to be reassured that no person will be tried without a case having
passed the Full Code Test in the Code. I would, of course, be
delighted to meet you at any time to discuss these issues further.
KEN MACDONALD QC
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