The Police are investigating – what can I do?
Posted on 17th December 2018
Many people, continuing to carry on with their everyday life are unsure what the future may hold when they are a suspect in a police investigation. It’s a time of uncertainty where there are often more questions than answers. What’s happening? How long will it take until I know what the police are doing? Is there anything I can do to stop them prosecuting me? Or if not, how can I prepare for what’s going to happen? And how can I protect myself as best I can, moving forward?
When does a suspect become aware of a police investigation?
Most suspects will only become aware they’re under investigation when the police ask to question them under caution. Or, they might have gone through the unnerving experience of being unexpectedly arrested, their home or work place searched and held in police custody in order to be interviewed. The police will want to interview a suspect in order to ask questions about that person’s suspected involvement in a criminal offence. Any interview conducted under caution must be taken seriously and legal advice obtained.
How long will the investigation take?
But the police interview is only one part of the investigation and the police will continue to conduct such enquiries they think reasonable. These enquiries can take place both before and after a suspect is interviewed. Depending on what is uncovered from those investigations it can result in a suspect being interviewed more than once. If a suspect has been released on bail from the police station this will have an impact as there are time limits as to how long a suspect can be placed on police bail. However, many suspects are not subject to police bail and even if they were arrested can be released under investigation and there are no strict rules on how long an investigation can take.
Many police investigations can take a significant period of time and suspects are left in a sense of limbo. A suspect has no rights to know the totality of the evidence collected against them at this stage. Police are trained to deliberately hold back information from suspects so they can test their credibility.
Often, the police do understand the human impact this can have and will try and keep those involved updated and when they don’t, they can be reminded. Having a professional take on this role is far preferable for a suspect. It protects them. Have no doubt, even for a completely innocent person to have anything they say taken out of context or to be put on record without proper thought, can hugely undermine their defence.
It may also be the case that after the initial interview a suspect feels there is evidence that is relevant and important to prove their account and they want to consider giving that information to the investigators. This investigation period is one that requires thought and consideration by both sides, particularly if the police approach a suspect asking for access to evidence they think they have in their possession. It is often the case that suspects are asked to provide significant amounts of information in particular access to telephone or electronic equipment, medical records or financial evidence. What authority the police have to ask for it, the consequences of providing this information or not are all important questions to consider.
The investigation is the responsibility of the police and they will make the decisions as to the scope of their investigations. There will come a point when they feel that their lines of enquiry have reached a point when the evidence gathered can be assessed. The police will decide what investigations they intend to pursue but, save for a few minor offences they cannot decide whether it is appropriate to present charges for a criminal court to consider. Only the Crown Prosecution Service can do that.
When the police refer the case to the CPS for a charging decision it might not be the first time the CPS have been involved in the case, they can often provide advice to the police regarding lines of enquiries, evidence, the management of disclosure and pre-charge procedures.
How do the CPS make the decision to charge a suspect with a criminal offence?
The first stage of any decision to charge is for the Prosecutor to consider the evidence. If a Prosecutor doesn’t consider a case to have passed the evidential test, the matter must not go any further. They will be looking at the alleged criminal conduct and the evidence the police have gathered to prove it happened.
The admissibility of the evidence that’s been gathered is highly relevant. The prosecutor should also consider the reliability and credibility of that evidence. A Prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction on the charges.
They should make a fair, objective assessment of the evidence; asking themselves if an objective, impartial and reasonable Judge, Magistrate or Jury, when properly directed as to the law and acting in accordance with the law, is more likely than not to convict the defendant of the charge or charges alleged.
The police interview with the suspect should be considered as part of that evidence. Part of the Prosecutor’s duty is also to consider what the defence case may be and how it is likely to affect the prospect of conviction.
The CPS may, having considered the matter authorise that an alternative to prosecution can be considered or an out of court disposal.
If they consider there is evidence to charge a suspect then the second stage is for the prosecutor to consider whether it is in the public interest to prosecute.
When is it in the public interest to prosecute?
The public interest test is a vital limb of the test to prosecute. It’s only considered once the evidential limb has been met. A prosecution will usually take place unless a Prosecutor is satisfied that there are public interest factors against prosecution which outweigh those in favour.
There are a number of factors the Prosecutor is to take account of when considering if it’s in the public interest to prosecute. More serious offences are more than likely to pass the test. The circumstances of the alleged victim of the crime is relevant including their views. However, the CPS does not act for the alleged victim. It is not the same as defence solicitors who act for their clients. The CPS’s concern is the public interest.
The circumstances of the suspect are also relevant to any decision to prosecute. This is particular important for children and young people who face criminal investigations. As children their welfare and best interests must be considered, the impact on their futures have to be balanced against the seriousness of the offence.
Whether a prosecution is a proportionate response to the likely outcome can also be relevant in the decision to prosecute.
Is there anything that can be done to stop the CPS prosecuting?
This process of decision-making is the responsibility of the Prosecutor but it doesn’t mean that the decision has to be made in isolation. A suspect does have an opportunity for their side to be considered.
Information or evidence can be submitted to the police as part of the investigation if it is appropriate to do so. Also, the suspect or their legal team can make pre-charge written representations to the CPS.
Pre-charge representations may want to highlight to the CPS key pieces of evidence or address the quality of the evidence gathered by the police. It may be appropriate for representations to be made that it is not in the public interest to prosecute or that an alternative disposal could be considered.
However, anyone under investigation and considering making such representations should obtain legal advice. A Solicitor will be able to advise how best to make such representations, what information would be helpful and if it is in your interest to pass that information to the Police and the CPS at that stage. It may be tempting to think that the more information you give to the CPS to undermine their case helps but remember that suspects often do not have knowledge of the full evidence gathered and putting forward inaccurate information would be undermining. There are many factors to consider.
What can I do if I think I’m likely to face prosecution?
Even if the CPS do decide to charge, they are under a continuing duty to review cases to ensure the code is met throughout the court proceedings. It is very important to remember the evidential test for bringing a prosecution is different to the test a Judge, Magistrates or a Jury will apply when considering if someone should be convicted of a criminal offence. Only a court can determine guilt in relation to a criminal offence. The CPS are not deciding that a suspect is guilty when they are making a charging decision.
A defendant (a person accused in criminal proceedings) cannot be convicted of a criminal offence unless the court is sure they are guilty. This is a very high standard of proof and it is for the Prosecution to meet that standard. If there is any doubt the defendant will have the benefit of that doubt and must be acquitted.
Given how long some investigations are currently taking, it’s essential to remember that the passage of time impacts on what evidence is available. Also, memories tend not to improve with time. It might be that the likelihood of a suspect facing prosecution is high. So, it is always worth considering what evidence there is, or might be available to help, to try and preserve it if you are charged.
When the CPS lay criminal charges, they will quite quickly be in a position to provide initial details of the prosecution case to the defendant. This is because at the first hearing a defendant is expected to indicate whether they will be pleading guilty or not guilty and if a not guilty plea is indicated the defence are expected to set out what the issues will be in the case. If a suspect hasn’t had legal advice it is important to obtain it as soon as they know there will be a court hearing.
The time a police investigation is ongoing is an opportunity to consider what can be done in the event a criminal court case takes place. It’s a time to understand the court procedure if charged, what would be the impact both personally and professionally. The funding of your legal representation should also be considered and what lawyers you’d want to work with. This is a personal crisis and like any crisis, managing it and taking control of it can help. It can make a difficult and uncertain time immeasurably more tolerable to have a plan in place on how to approach any criminal case.