Realising that you are the subject of a criminal investigation can be very intimidating. The period while an investigation is ongoing is a very uncertain time and you will likely have many questions about what may or may not happen next, and whether there is anything you can do to prevent a prosecution.
How will I know if I am the subject of an investigation?
In many cases, you will not know until the police contact you to carry out an interview under caution. You may be invited to attend the police station voluntarily (i.e. not under arrest) or you may only realise that you are the suspect in an investigation when you are arrested by police. The police are likely then to interview you under caution to help determine your involvement in the offence you are suspected of.
How long will the investigation take?
This depends and it is unfortunately impossible to predict a precise time frame in any case. The police are able to carry out such investigations as they consider reasonable and you are not entitled to know the nature or extent of their investigation prior to being charged. They may investigate both before and after an interview. In practice, the police will often keep you updated regarding the progress of an investigation once you are notified you are a suspect, but you do not have a right to much information regarding an ongoing investigation.
The length of a police investigation after any interview will depend on a number of factors including the nature and circumstances of the alleged offence(s) and of the police investigation. You may be interviewed on more than one occasion. If you have been released on bail from the police station, there are time limits which will affect the length of time you can be bailed, and this can provide some guidance as to when a decision may be made whether to charge you. However, many people are released under investigation after interview and there are no strict rules on how long an investigation can take.
The police may also contact suspects and request that they provide evidence relevant to the investigation, including access to telephone or electronic equipment. It is very important to consider whether the police are entitled to request this information and the possible consequences of providing it.
The police should notify you once they have concluded their investigation, including advising you if they intend to take no further action. You can contact the police for updates regarding the progress of an investigation or it can help to have a legal representative do this on your behalf.
Who decides whether I will be charged with an offence?
Except for a few very minor offences, the police cannot make charging decisions. The police can decide how and who to investigate in relation to a suspected offence, but only the CPS can decide whether or not to charge. When they consider it appropriate, the police will send the information and evidence they have obtained in the course of their investigation to the CPS to ask them to make a decision as to whether to prosecute you. They may also seek advice from the CPS during the course of an investigation. As well as deciding whether or not to charge, the CPS may also approve out of court disposals, such as a caution.
How will the CPS decide whether to charge me?
In all but exceptional cases, the CPS must consider a two part test:
- Firstly, they must consider the evidence. If the evidence is not strong enough to meet this part of the test, then they cannot prosecute. They will need to consider whether there is sufficient evidence to provide a realistic prospect of conviction for each charge.They will consider the credibility of the evidence gathered and the admissibility of that evidence. They will also consider any interview, and should consider the strength of any possible defence which may be raised, and how this will affect the prospect of conviction.
- Secondly, if the CPS have decided there is sufficient evidence to charge you with an offence, they must then consider whether it is in the public interest to prosecute.There are a number of factors they must consider, including the seriousness of any offence, the circumstances and harm to any victim and their views. However, it is important to note that the CPS do not work on behalf of the victim. They must consider what it is the public interest, and also consider the circumstances of the suspect, for example their age and the effect of any mental or physical illness, when determining this question.
Can I do anything to prevent the CPS from prosecuting me?
Ultimately, the decision is for the CPS to make and you do not have an automatic right to challenge a decision to prosecute. However, any evidence or information provided by a suspect to the police should be taken into account by the CPS when they decide whether to charge, and this may lead them to decide that either part of the test is not met.
It is also possible to for you or your legal representative to make written representations to the CPS requesting that they do not proceed with a prospection and explaining why the CPS should not prosecute. However, it is very important to seek legal advice if you are considering this. A solicitor will be able to advise you on how best to make these representations and what information it might be helpful to provide and also if providing any information may be detrimental to you.
It is also important to remember that the decision to prosecute must be kept under review by the CPS. If you are charged and further evidence or information comes to light during the course of the investigation which either affects the prospects of a conviction or whether a prosecution would be in the public interest, then the CPS should reconsider their decision. You or your legal representative can again make representations that the prosecution should be dropped at this stage.
If you become aware that you are the subject of a police investigation, it is best to seek legal advice at the first opportunity. You are entitled to legal advice and assistance before and during an interview under caution, even if you attend voluntary, and receiving advice at this stage can assist to clarify the process.
If you are under a police investigation and would like advice from a specialist criminal solicitor, please call 0808 252 5231 or request a call back online.