Pre-Charge Representations

Chapters Eleven and Twelve explained how to build a defence case and how to protect its legal and ethical boundaries. This chapter deals with deployment. It asks when selected material or analysis should leave the protected defence process and be put before an investigator or prosecutor to influence a decision before charge.

The defence does not control the charging decision. It can, however, improve the information on which that decision is made. The strategic task is to intervene before an avoidable charge without disclosing more than the objective requires, committing the client to an unstable account or showing investigators how to repair a weak case.

1. What a pre-charge representation is

A pre-charge representation is a focused submission made for a suspect before a final charging decision. It may place evidence or information before the current decision-maker, identify a legal or evidential defect, invite a defined enquiry, address the public interest, propose a narrower allegation or appropriate alternative, or explain why the investigation should conclude.

The Code for Crown Prosecutors recognises that a suspect or those acting on their behalf may submit evidence or information to help inform a prosecutor's decision. In an appropriate case, the prosecutor may invite it. That is important, but it should not be misunderstood.

• There is no universal right to advance disclosure of the prosecution case before making representations.
• There is no guarantee that the recipient will accept the facts, complete the requested enquiry or provide a detailed answer.
• A representation becomes part of the history of the case and may be examined against later evidence.
• The submission should assist the lawful decision, not seek influence through pressure, status or publicity.

2. Identify the decision before drafting

A representation aimed at the wrong decision is often wasted. Before writing, identify what is about to happen, who is responsible for it and what material that person is likely to have.

The recipient may be the officer in the case, a supervisor, a police decision-maker, the CPS or another prosecuting authority. If the defence does not know whether the file has been referred, it should ask a precise status question rather than send a document into an undefined process.

3. Identify the test

In serious or complex cases, prosecutors commonly decide whether and what to charge. The police retain responsibility for specified categories and apply the same general principles. The practical division should be checked in the current charging guidance and for the offence under investigation.

The Full Code Test

The Full Code Test contains two stages. First, there must be sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. The assessment is objective and must consider the likely defence and other information put forward by the suspect. It includes admissibility, reliability, credibility and any other material affecting sufficiency. A case that fails this stage must not proceed, however serious or sensitive it may be.

Second, where the evidential stage is met, the prosecutor decides whether prosecution is required in the public interest. The questions include seriousness, culpability, harm to the victim, age and maturity, community impact, proportionality and the protection of sources. The factors are not a checklist of equal weight.

The Threshold Test

The Threshold Test permits charge in limited circumstances before the Full Code Test is met. All five conditions must be satisfied. There must be reasonable grounds to suspect the offence; reasonable grounds to believe identifiable further evidence will provide a realistic prospect of conviction within a reasonable period; seriousness or circumstances justifying immediate charge; continuing substantial grounds to object to bail; and a public-interest basis for charge. A representation should address the condition that is genuinely in dispute.

4. Find the point capable of changing the decision

Most effective representations do not attempt to answer everything. They identify a discrete point that changes the legal or evidential analysis.

• An essential element of the offence cannot be established.
• The principal evidence is inadmissible, unreliable, incomplete or contradicted by an objective source.
• Attribution to the client is assumed rather than proved.
• A reliable innocent explanation is supported by material capable of independent verification.
• A limited reasonable enquiry may resolve the central dispute.
• The proposed charge does not reflect the provable conduct or a lawful defence applies.
• Even if the evidential stage is met, prosecution is not required in the public interest.

The point should be expressed as a proposition the decision-maker can test. 'The allegation is false' is a conclusion. 'The access log records a different authorised user at each disputed time, and the original can be obtained from the employer' identifies a fact, a source and an enquiry.

5. Verify the proof before deployment

A representation should distinguish instructions, independent material, expert opinion and legal submission. The client may honestly remember an event incorrectly. A screenshot may omit context. A spreadsheet may be accurate but lack provenance. An expert conclusion may depend on assumptions not yet tested.

• Authenticate documents and identify their source, date, completeness and chain of custody.
• Check whether an extract changes meaning when placed in the full conversation, account or data set.
• Separate what the client says from what independent evidence demonstrates.
• Explain how each attachment proves the proposition for which it is supplied.
• Address material that appears inconsistent rather than presenting a falsely clean account.
• Consider whether investigators should obtain the original directly from an independent controller.

Where the proof is unstable, preserve and investigate it. Do not convert uncertainty into confidence merely because a charging decision may be close.

6. Decide whether to say it now

A strong point can still be deployed at the wrong time. The defence should compare the likely benefit against what the submission may reveal, fix or provoke.

7. Structure the representation

The document should make the decision easier, not longer. A disciplined structure is usually more persuasive than rhetorical force.

1. Purpose and status. Identify the suspect, investigation, present stage and decision the submission addresses.
2. Outcome sought. State whether the request is NFA, a defined further enquiry, a narrowed allegation, reconsideration of bail or another lawful outcome.
3. Applicable test. Set out only the part of the legal or charging framework necessary to decide the point.
4. Determinative proposition. Lead with the strongest reason the requested outcome follows.
5. Verified factual foundation. Distinguish agreed or objective material from instructions and explain the provenance of each source.
6. Adverse material. Address the strongest apparent answer fairly and explain why it does not displace the submission.
7. Supporting material. Use a numbered, indexed and proportionate bundle; explain the relevance of each item.
8. Requested action and review. State the decision or enquiry sought, identify urgency if real and ask for confirmation of receipt and placement before the decision-maker.

A long submission may be justified in a complex fraud or regulatory investigation, but length should follow complexity. Repetition does not create weight. The reader should be able to identify the decisive proposition and requested action from the first page.

8. Evidence-led, candid and professionally credible

The strongest tone is measured confidence. The representation may be robust, but its authority comes from accuracy. It should not misstate disclosure, describe disputed instructions as fact, accuse a witness of lying without foundation, suppress an obvious qualification or suggest that professional status places the client above ordinary charging principles.

• Use neutral descriptions before argumentative labels.
• Quote only what matters and preserve the surrounding context.
• Acknowledge what the material cannot prove.
• Do not attach volume as a substitute for analysis.
• Avoid threats of publicity, complaint or collateral pressure as a means of influencing the charge.
• Draft on the assumption that the document may later be read by another prosecutor, a court, a regulator or the client.

9. Control the supporting material

• Do not disclose legal advice or privileged analysis merely to demonstrate cooperation.
• Consider whether verified underlying facts can be provided without revealing legal reasoning.
• Use redaction only where lawful and where it does not distort meaning; explain it where necessary.
• Protect third-party privacy, safety and confidential information while preserving evidential completeness.
• Where independence matters, invite investigators to obtain the original from the source.
• Keep an exact copy of the submission, attachments and transmission record.

Once provided, defence material may generate further enquiries and may be compared with interview answers, employment accounts, regulatory responses and later pleadings. Deployment should therefore be a deliberate evidential act.

10. Further enquiry may be the correct request

The proper outcome is not always immediate NFA. The Full Code Test may be applied before every enquiry is complete if further material is unlikely to affect it. Conversely, a charging decision should not bypass a limited reasonable enquiry capable of changing the analysis.

A useful request identifies the source, the issue, the practical route and the possible effect. Examples include obtaining the complete message thread rather than extracts; preserving original CCTV; interviewing an independent witness; securing access or audit logs; testing document creation or device attribution; or obtaining defined medical, financial or scientific evidence.

11. Public-interest representations

Public-interest submissions begin only after identifying the evidential position. They should be tied to the Code, any offence-specific guidance and the actual facts. Relevant matters may include limited culpability, actual harm, age or maturity, significant ill health, coercion or exploitation, remediation, restitution, delay, a suitable out-of-court disposal, or whether prosecution is proportionate to the likely outcome.

Collateral consequences require care. Loss of career, professional discipline, immigration risk or reputational damage may be severe, but severity to this individual is not itself a public-interest trump card. Explain why the consequence is relevant to proportionality, culpability, rehabilitation, safeguarding or another recognised factor. Avoid any suggestion that prominence, wealth or professional status warrants preferential treatment.

The victim's views may be relevant, but the prosecutor makes the overall public-interest decision. The defence should not contact a complainant to obtain support without a separate lawful and ethical risk assessment.

12. After submission

A representation is an intervention, not the end of the review. The defence should confirm receipt, accessibility of attachments and placement before the correct decision-maker. If the decision will be deferred, ask what enquiry remains and when the case will be reviewed.

• Record the version, attachments, recipient, time and method of delivery.
• Diarise the expected referral, charging or review point.
• Correct a material error promptly and transparently.
• Update or withdraw the submission if later evidence changes its foundation.
• Avoid repeated chasing; every contact should have a defined purpose.
• After NFA, confirm the decision and advise that reconsideration may remain possible in recognised circumstances.

13. Two practical examples

Example one: the incomplete digital chronology

A professional was accused of sending a series of messages from an organisational account. The initial extracts supported access and motive, but not authorship at the relevant times. The defence obtained a complete audit report showing multiple authorised users and a separate location record inconsistent with personal use by the client. The representation did not offer a broad narrative. It identified the attribution gap, provided the verified records and invited direct confirmation from the system administrator. The decision-maker could test one proposition without accepting the whole defence case.

Example two: the submission that was not yet ready

A client wanted an immediate letter denying a serious allegation and naming several witnesses. Instructions were still changing, the proposed screenshots were incomplete and one witness had not been contacted independently. The defence preserved the material, clarified the allegation and obtained the original records before deciding whether to engage. Restraint avoided committing the client to an inaccurate chronology and exposing a new line of enquiry. The strategic work was the decision not to send the first draft.

14. The representation audit

• Decision: What is about to be decided, by whom and when?
• Test: What legal, evidential or public-interest test actually governs?
• Point: What single proposition is capable of changing the decision?
• Proof: Is the factual foundation verified, complete and capable of independent checking?
• Risk: What will the submission reveal, waive, fix, provoke or commit the client to?
• Request: What precise decision, enquiry or alternative is sought?
• Review: How will receipt, accuracy, response and later evidence be monitored?

The result should be an auditable deployment decision. The file should explain not only what was said, but why it was said at that stage, why the supporting material was selected and what consequence the defence expected.

Legal source note

This chapter draws on the current Code for Crown Prosecutors, particularly paragraphs 3.1-3.6, 4.1-4.14 and 5.1-5.11; the Director's Guidance on Charging, sixth edition; section 28 of the Criminal Justice Act 2003; and the Attorney General's Guidelines on Disclosure 2024. The Code expressly recognises that suspects or their representatives may submit evidence or information before or after charge, while preserving prosecutorial independence and the distinct responsibilities of investigators. Charging allocation, offence-specific policy, specialist prosecutors and particular statutory regimes require case-specific checking.

Primary and official sources are listed in the guide-wide source register.