Being the subject of a criminal investigation or proceedings can have a hugely detrimental impact on a person’s private and professional life. Not only must a suspect dedicate valuable time and energy to addressing the allegations made against them, but the stress of the case can seep into every aspect of a life – something that is not helped by the ‘no smoke without fire’ fallacy.
The primary ambition for many individuals who find themselves subject to criminal investigation will be to shut it down as quickly and discreetly as possible. Depending on the nature of the claim, there are number of techniques a suspect can employ to achieve this. These include:
Evidence obtained through independent investigative work can assist enormously in building a defence. CCTV footage, witness testimony, electronic evidence: all may help stop an unmerited criminal investigation or prosecution in its tracks. However, it is crucial that evidence is gathered properly and in accordance with the law. Investigative work should therefore be conducted either by, or under the aegis of, a law firm with expertise in this area.
The Code for Crown Prosecutors sets out the principles which the CPS must follow when making a decision to charge. Essentially, the agency must satisfy both stages of a two-stage test before charging:
The CPS has a duty to review a prosecution throughout the life of a case. It is therefore possible to persuade the agency to decline to proceed to the charging stage or – if charges have already been brought – to end its prosecution. This can be achieved by obtaining evidence which has not previously been considered or by presenting a compelling counter-narrative. Success in this depends to a great extent, on the timing, content and presentation of arguments made on behalf of a suspect. It should thus only be handled by an experienced lawyer.
It is not always possible for a police investigation to end without some form of action being taken against a suspect. However, some allegations can be resolved to the satisfaction of all parties without the need to go to court.
It may be possible to persuade the police or prosecution to deal with an allegation by way of an ‘out of court disposal’. These can include:
There are two types of police caution: simple and conditional. A simple caution is a formal notice issued by the police to deal with low level offences usually committed by first time adult offenders. A conditional caution can only be authorised by the CPS and requires an offender to comply with requirements such as paying compensation to a victim or issuing an apology.
A caution is not a conviction but it is an admission of criminal responsibility. Cautions form part of a person’s criminal record and may be referred to in future criminal proceedings.
Accepting a caution can be a positive outcome. It can offer those responsible for a criminal offence a quick and equitable way to accept responsibility and move on with their lives. However, cautions are not ‘cost free’ for the suspect and can have significant long-term downsides.
Suspects in the police station can feel pressurised to accept a caution in order to avoid a prosecution. Suspects should think carefully before agreeing to one, and should, if possible, seek legal advice.
A community resolution is a way to resolve allegations of minor offending or anti-social behaviour by the parties entering into an informal agreement. Such an agreement is arranged through the police and requires some acceptance of responsibility by a suspect.
It is not a criminal sanction and does not form part of a person’s criminal record. The police do keep a local record of the community resolution and, like a caution, it may be disclosed as part of an enhanced DBS check.
Restorative justice is a process by which the parties involved in a criminal offence collectively resolve to deal with the offending and its aftermath. This can include mediation (face-to-face or indirect), communication between the parties or restitution and reparation to a victim or community. This process is more commonly used after conviction or as part of a sentence but, importantly, it can form part of a conditional caution or community resolution disposal.
A fixed penalty notice (FPN) or penalty notice for disorder (PND) can be issued by the police as an alternative to prosecution for a range of offences. Unlike a caution, there is no need for an admission of guilt. Payment of the penalty notice discharges liability for prosecution. However, anyone who chooses not pay the notice or asks to be tried for the offence may still face prosecution.
Often, the key to successfully defending criminal matters lies in unearthing useful information through the disclosure process. This is particularly true when the allegation relates to activity from some time ago. In these cases the defence must ensure that diaries are reviewed and that third party material such as information held by social services or medical and counselling records are obtained and fully considered.
Hickman & Rose has demonstrable success in employing all the above techniques and more to the benefit of our clients. Our experience is that obtaining practical advice in the early stage of a case often makes a significant difference to the outcome.
19 Jul 2021
Head of Serious and General Crime Jenny Wiltshire has featured in the Law Society Gazette as its “Lawyer in the News” for her work on the ‘Stockwell Six’ Court of Appeal case.
As well as…